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Jul 02 2013

The Prop 8 Ruling and the Problem of Standing

I have been arguing for years against the Supreme Court’s absurd and entirely artificial standing doctrine and the way that it prevents justice and insulates the government from accountability so often, but the ruling in the Prop 8 case, while I like the result very much, is particularly troubling to me. Let me explain why.

The governor and attorney general of California, Jerry Brown and Kamala Harris, refused to defend the constitutionality of Prop 8 when it was challenged in court. That’s okay. They have that right. There is no requirement that the executive branch, either at the state or federal level, must defend every law in court. They usually do so as a matter of tradition, but there have long been exceptions. The Obama administration did the same thing with DOMA at the federal level.

But what happens then? Someone has to defend the law or you can’t really have a trial at all, right? The trial court allowed the organization that put the referendum for Prop 8 on the ballot to intervene in the case as defendants and to represent the law in court. The California Supreme Court ruled that such intervention was allowed under state law and the 9th Circuit Court of Appeals agreed. But the Supreme Court disagreed, but only with regard to the appeal, not the original case itself. Thus, they said, the first court ruling, which overturned the law, stands and all further appeals are voided and Prop 8 is therefore overturned.

Again, I like that result. What I don’t like is the precedent this sets. There are really only three choices when a law is challenged and the government refuses to defend its constitutionality:

1. The law can’t be challenged because no trial can be held with only one side.
2. The plaintiffs are granted summary judgment and the law is automatically voided because there’s no one to defend it.
3. The court allows someone other than the government to intervene and defend the law.

Either of the first two results are obviously bad and the results of this particular case should not blind us to that fact. It could just as easily be a law that we like that is automatically struck down without a trial or a law that we dislike that is automatically upheld without a trial. The third option is the only one that could possibly be legitimate and it is that option that the Supreme Court ruled out (though they did not do so in the DOMA case, where the situation was nearly identical, based on a very technical difference between the two situations).

This is just another of the many ways that the court’s standing doctrine leads to astonishing absurdities. The same thing is true of the Establishment Clause, for example, where the court has bizarrely concluded that a taxpayer has standing to challenge the use of tax dollars to fund churches and other religious organizations if that money was appropriated by Congress but not if that money was laundered through the executive branch first. It’s also true of the many cases against illegal government surveillance, in which the government refuses to say whether they have surveilled the plaintiffs without a warrant and then says that since they can’t prove that they were surveilled, they don’t have standing. The effect of these situations, obviously, is to insulate the government from legal challenge and make the constitution unenforceable in many cases.

The court’s standing doctrine leads to clearly absurd and dangerous results. It’s also entirely artificial. Nothing in the Constitution requires it. In fact, the text that they base this doctrine on is incredibly broad, it says that the Supreme Court has jurisdiction in “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” All cases arising under this constitution is about as broad as it could possibly be.

So what is behind all of this? Two things. First, the argument goes, such a doctrine is necessary in order to prevent the courts from being flooded by frivolous complaints. Okay, maybe, but that hardly justifies some of specific hair-splitting that is contained in that doctrine. It’s not as if allowing legal challenges to illegal surveillance or to the use of tax dollars to fund religion is going to unleash thousands of cases every year. Second, I think, is that the Supreme Court justices of all ideological stripes like to have it around in order to get rid of cases without ruling on the merits when they don’t like how such a substantive ruling might go. But it’s distorting things in a very big way and preventing the most crucial check on executive power that we have from being used in far too many cases. It’s time to fix this.

Congress could do that, by the way. They could pass a law granting standing to all plaintiffs in such cases where the court’s standing doctrine has prevented plaintiffs from having their day in court. But frankly that’s a pipe dream and is not likely to happen.

16 comments

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  1. 1
    Randomfactor

    I fail to see how #2 is bad. If no one stands up to defend a bad law, that’s evidence that it IS a bad law.

  2. 2
    Randomfactor

    OK, I take that back, somewhat. Petition levies tax on corporations; governor and AG are in the corporate pocket and thus refuse to defend the law, so it’s overturned. However–standing implies you’ve been hurt in some way. Prop 8 proponentists couldn’t show any damages, but surely a really injured group could?

  3. 3
    tuxedocartman

    Randomfactor @ #1: Congress passes a law prohibiting some company from dumping toxic waste in playground sandboxes; said company appeals, because they make $$$ per baby mutated; executive (who may ormaynot have received contributions from company X) refuses to defend the law; law gets thrown out, more mutant babies.

    Unless that was sarcasm. In which case, I plead long night coupled with early morning, and will go back to lurking now.

  4. 4
    baal

    My distaste for ‘standing’ arose out of reading cases in law school. It seemed that under the usual rules of law that a plaintiff was entitled to relief but the court would trot out standing or another prudential doctrine to kill the case with out having to explain why this plaintiff in this case shouldn’t win. Like the example in #3, the cases usually played in favor of the defendant evil corp (big entity).

  5. 5
    eric

    @3: IANAL but in your example case, wouldn’t mutant baby family probably has standing to get the law enforced because they can show harm?

    I think if you try and come up with cases that are similar to prop 8 in that nobody can show harm by non-enforcement, then option #2, IMO, looks pretty good. Why not throw out a law when the executive doesn’t want to enforce it and nobody is harmed by its absence?

    Granted, sometimes I think standing arguments take a really restrictive notion of “harm.” But I don’t see a problem with a legal system that tries to use both #2 and #3 in cases where they (each) are most appropriate. I see a much bigger problem with #1, because it seems to get the logic backwards (if someone is complaining and no one is defending, the defender wins???)

  6. 6
    jamessweet

    I fail to see how #2 is bad. If no one stands up to defend a bad law, that’s evidence that it IS a bad law.

    Okay, really? Say that in NYS, where there are powerful state-level protections against LGBT discrimination, a hard right executive branch comes into power. (Ignore that this exact aspect is not particularly realistic; more realistic scenarios COULD be concocted, but I’m not going to take the time at the moment) Then, all it would take would be a religious right legal group to file a lawsuit arguing (however unconvincingly) that the NYS laws against LGBT discrimination are unconstitutional. The hard-right executive branch refuses to defend it, BAM. The law is struck down.

    It essentially gives the executive branch an indefinite veto of any law for which they can find a group willing to bring a case against it.

  7. 7
    jamessweet

    FWIW, I think that the way the 9th Circuit handled the standing issue was very sensible and forward-thinking, even though it resulted in some frustrating delays: They asked the California Supreme Court to decide the issue according to California law. And since Prop 8 was a citizen initiative, I think the Cali Supremes made the very reasonable determination that it entirely undermines California’s voter initiative system if such a law can be stricken just be the executive branch refusing to defend it. Now, I’m not a fan of CA’s voter initiative system in the first place.. but given that’s what the California constitution says, the California Supreme Court made a very reasonable ruling; and I think the 9th Circuit made a wise choice in making it a matter of California law.

  8. 8
    W. Kevin Vicklund

    The actual precedent is a bit more nuanced than what Ed has presented. The law can be challenged, and provided the plaintiffs have standing, interested parties can intervene to defend the law. The interested parties don’t have to have standing to intervene. If a third party is allowed to intervene, the case can go forward. (If no one successfully intervenes, and the executive decides not to defend the law, summary judgment issues). If plaintiff loses, plaintiff can appeal, and the intervenors can continue to defend the law.

    The actual problem arises if the court strikes down the law. Under this precedent, the intervenor can’t appeal if they lack standing of their own.

    The above analysis is independent of the issues about plaintiff standing.

  9. 9
    W. Kevin Vicklund

    Okay, really? Say that in NYS, where there are powerful state-level protections against LGBT discrimination, a hard right executive branch comes into power. (Ignore that this exact aspect is not particularly realistic; more realistic scenarios COULD be concocted, but I’m not going to take the time at the moment) Then, all it would take would be a religious right legal group to file a lawsuit arguing (however unconvincingly) that the NYS laws against LGBT discrimination are unconstitutional. The hard-right executive branch refuses to defend it, BAM. The law is struck down.

    Not quite. First of all, as I observed above, LGBT individuals or groups would have the opportunity to intervene to defend the law at the trial court level. Second, they would be able to assert standing, because they would be adversely harmed by a ruling against them (they would have protections specific to them as a class stripped away, as opposed to generic protections available to anyone). Under the rationale in the Prop 8 decision, they would still be able to pursue appeals.

  10. 10
    W. Kevin Vicklund

    Should add a disclaimer: I don’t agree with the decision, I think standing doctrine starting with Frothingham v. Mellon has been severely distorted. I’m just pointing out that it’s not as bad as people think it is.

  11. 11
    Ace of Sevens

    If I read it right, since the defendants weren’t affect by the law beyond that having it overturned would hurt their feelings, they didn’t have standing. There should be relatively few laws where enforcement wouldn’t have a positive impact on someone.

  12. 12
    whheydt

    Since various people have pretty much covered the substantive issues I was thinking of commenting on, I just want to “clarify the record” a bit…

    For the initial trial, it was not Gov. Jerry Brown and AG Kamala Harris that declined to defend Prop. 8. It was Gov. Arnold Schwartzenegger and AG Jerry Brown that declined to defend. It was only during the appeals that Gov. Jerry Brown and AG Kamala Harris declined to defend.

    There was also some backing and forthing between the Gov. & AG and the intervenors during the run up to the original trial Schwartzenegger and/or Brown offered to join the defense, byt the intervenors declined on the grounds that–knowing that those two thought it was bad law–that they would quietly give the plaintiffs details on the defendants plans for the defense.

    In the end, it made no difference because the intervenors put on an appallingly poor case. It might just as well have been Ed’s item #2.

    And that puts another potential slant on the standing issue. Suppose that the government *does* defend a law, but does so by coming into court and saying, “The Plaintffs are correct, this law is indefensible. We are here to let the court know that and we will not oppose a summary judgement motion.” What then? Those that are supposed to defend have done so, but not in a way that will have any more effect than not showing up at all. (Call it”#2a”, perhaps?)

    My personal opinion was that it was rather stupid on the intervenors part to even pursue appeals. They had far more to lose than to gain. If they’d had standing and the Supreme Court had gotten to the merits, or even just tossed the case leaving the 9th Circuit decision intact, they’d be much worse off. The only reason I can think for going the route they did is because it put off their day of reckoning–as evidenced by their attempts to delay implementation of the trial court decision, or minimize the breadth of its application if they couldn’t delay it. Kamala Harris and Jerry Brown have scotched those efforts rather neatly.

  13. 13
    patentlyabsurd

    Congress could do that, by the way. They could pass a law granting standing to all plaintiffs in such cases where the court’s standing doctrine has prevented plaintiffs from having their day in court. But frankly that’s a pipe dream and is not likely to happen.

    It’s not quite that simple. While you may not agree with the “Case or Controversy” doctrine the Court has drawn from the Constitutional text you quoted, so long as the Court believes that the requirement comes from the Constitution, Congress can pass all the laws it likes – the Court will ignore them or overturn them. For broad background on the Case or Controversy doctrine, take a look here:
    http://en.wikipedia.org/wiki/Case_or_Controversy_Clause

    For a more in-depth discussion of this issue, take a look here:
    http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/ELLIOTT.pdf

  14. 14
    alwayscurious

    It seems to me that point #2 is too broad. Why would the law have to be voided necessarily because it wasn’t defended? The summary judgement could include injuring parties recompensing the injured parties without necessarily overturning the law (depending on the nature of the case).

    This leads to the second problem I have with 3rd party plaintiffs: What happens if well-meaning plantiffs fail? Who has to pay the damages? Can the government be held accountable for damages if their self-styled representatives really screwed up the case? And the court fees? Can the government be forced to pay court costs if their representatives drag it on forever (when the government was quite happy to let it die a quiet death or settle for summary judgement).

    Does the government get a chance to step in for an appeal if they change their mind in the middle of the process? Or even after it’s done?

    I’m primarily worried that a treacherous band of troublemakers could step up to defend a bad law, mishandle the proceedings, stick the unfortunate government (taxpayers) with the bill, and perhaps get a less reasonable judgement at the end of their manipulations. The principle of standing makes sense to me, but when it involves the government maybe some additional consideration needs to be given.

  15. 15
    alwayscurious

    Guess I should have read W. Kevin Vicklund’s comments before posting.

  16. 16
    W. Kevin Vicklund

    Still some valid questions. The government could at any point step in to defend the law, including an appeal (say for example that they agreed that the law was unconstitutional, but believed that the judicial theory invoked by the court set a dangerous precedent) – at least, as long as they did so within the standard time limits.

    Intervenors would be responsible for sanctions arising from their own actions (unreasonable delays, etc.). Fee shifting and normal damages is a bit tricky and would probably be context-dependent.

  1. 17
    A supreme court decisions roundup « Jadehawk's Blog

    [...] 1)United States v. Windsor and Hollingsworth v. Perry — These are the DOMA and Prop8 cases, respectively. The most important positive bit here is that in states where gay marriage is legal, gay married couples will now be treated the same as straight married couples at the federal level. The major bad part is that the way these two cases were handled, state-level bans on gay marriage are still perfectly legal, and states don’t need to acknowledge other states’ marriage laws. Basically, they turned gay marriage into a “states rights” issue. Still, this is at least 2 steps in the right direction: end to federal-level discrimination of already legal gay marriages, and the death of Prop * (and therefore restoration of gay marriage in California), but int he case of Prop 8, at a very high price, because the whole “standing” thing is arbitrary and can be used in really shitty ways to deny people access to courts. [...]

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