The Prop 8 Ruling and the Problem of Standing

The Prop 8 Ruling and the Problem of Standing July 2, 2013

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.

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