Standing and the DOMA/Prop 8 Cases

I argue that the Court should and will claim jurisdiction over both suits.

As always, Linda Greenhouse is worth reading on the subject as well.

26 comments on this post.
  1. sharculese:

    Leaving aside what the Court should do, what will they do? My guess is that, because the lower court rulings both resulted in the anti-LBGT law in question being struck down, the votes to deny standing won’t be there.

    This is about where I am too. I’ve never been a fan of the argument that we should take a big whack at standing because for once it’s advantageous to do so, and I can’t see that argument gaining traction with the liberal wing of the Court, either.

  2. sharculese:

    Also, finally got around to reading the Greenhouse piece, and it’s an interesting theory, as well as being a great explanation of standing that I’ll definitely point to next time someone asks me to explain it.

  3. LosGatosCA:

    I wonder when Democrats will claim jurisdiction over the Pentagon:

    “Former Republican Sen. Chuck Hagel is the Obama administration’s top candidate to become defense secretary, Bloomberg News reported Thursday. According to the report, the President could nominate Hagel for the post sometime this month.”

    You know you are a serious party when the most important job below President in your administration goes routinely to folks from the other party because your team either doesn’t have the balls or the smarts or the experience to do it.

    And they wonder why even unserious people, i.e. the Villagers, don’t give them respect.

    The half life on good trends driven by the Democrats is about 90 days.

  4. thusbloggedanderson:

    Hard to say, but the Court certainly didn’t have to demand briefing on standing.

    I can easily imagine Scalia-Thomas-Alito voting to uphold Prop 8 & DOMA, the four “liberals” voting to strike, and Kennedy-Roberts voting there’s no standing, which would effectively give a “win” while the issue of gay marriage percolates a while longer.

    From a conservative, as opposed to radical-reactionary, p.o.v., the Court does best when it majestically affirms what the rest of the country has come to believe anyway.

  5. thusbloggedanderson:

    Yah, that is so old. But from our Eisenhower Republican in the White House, I’m not too surprised.

  6. LosGatosCA:

    On the other hand, at least they stood up to Republicans on the Secretary of State job.

    Oh, guess not

  7. Hob:

    Secretary of Defense is “the most important job below President”?

  8. L2P:

    That seems reasonable.

    I’ve been curious how the conservative justices are going to find standing for the Prop. 8 appeal (that looks tougher than the DOMA case to me; YMMV). They can do it, of course, but they’ll have to ignore basically everything they’ve ever written. I could see Scalia ruling that the plaintiffs lacked standing out of spite so that he can get another chance to whine about how the 9th Circuit just keeps ignoring precedent.

  9. sharculese:

    but they’ll have to ignore basically everything they’ve ever written

    This presents a problem for them how?

  10. sharculese:

    Yeah, I mean I do find it puzzling that they took up the standing question, and I think your scenario is plausible, but I just don’t see it happening.

    Whatever, tea leaves, etc. etc.

  11. JKTHs:

    Can’t they stop with this bipartisan bullshit and just keep appointing Clinton scrubs?

  12. L2P:

    It’s a problem for a couple reasons.

    Most importantly, District Court judges can’t boot plaintiffs out as easily for lack of standing because the plaintiffs will cite this new ruling. They’ll say, “See? Even Scalia thinks that a guy who isn’t even hurt by a law has standing to challenge it.” That’s not good (if you agree with the conservative standing jurisprudence). It’d be basically up to the judge whether to hear the case or not.

    It also makes a mess of their precedent. We all “know” the court is making substantive decisions with its “procedural” standing decisions. This would put a big neon sign on it. Roberts and Thomas, at least, kind of care about the Court looking consistent.

    Which doesn’t mean they won’t just go ahead and find standing because, damn it. Teh Gay. You know?

  13. Richard:

    You know, picking a Secretary of State shouldn’t really be done just to stick it to the other side. Is there any reason to believe that Rice would be better than Kerry in this job (assuming that Kerry is now the front runner)? (Plus the fact that Rice’s ownership of stock in the company building the pipeline from Canada created a conflict of interest and has garnered opposition from the environmental left in the last week)

  14. sharculese:

    I was being snarky, but okay, yeah, you raise a couple of good points.

    But I do think you underestimate Scalia’s ability to craft a rationale (for Prop 8) that makes it very specifically about the language of the California initiative statute. I’m scanning part III of Perry again and I see how it could give him enough ammo to do so.

  15. thusbloggedanderson:

    What on earth makes you think Rice was considered in order to “stick it to the other side”?

  16. thusbloggedanderson:

    They can probably contrive something narrowly tailored to the relatively unusual facts, if they’re hankering to find standing.

  17. Richard:

    She wasn’t. I’m sure she was considered because she’s a good nominee and Obama likes her. But LosGatosCA is clearly making the claim that the President should have made her the nominee in order to stand up to the Republicans and that her withdrawal is a capitulation.

  18. thusbloggedanderson:

    “Clearly”? I took it as, standing up by Obama’s not changing his mind about Rice for State.

  19. L.M.:

    The mere fact that standing is even an issue in these cases highlights just what a ridiculous, a-constitutional invention standing doctrine really is. Does anyone doubt for a second that there’s a case or controversy here?

  20. Joe:

    The ninth circuit ruled that you can’t take away same-sex marriage rights once you have granted them,

    and the ruling was even narrower than this rough summary at that though from some of the reporting, you would think that “SSM” full stop was at issue in these cases.

  21. Richard:

    Thats the way I read it. Criticizing Obama for allowing her to bow out and therefore not standing up to the Republicans. He “clearly” wanted Obama to nominate her and stand up to them. Its seems to me this is a slightly silly position unless you can make the argument that Rice is better than Kerrey.

  22. Murc:

    Language usage nitpick:

    In both the the DOMA and Prop. 8 cases, the executive branch—either the White House or the California governor’s office—whose law has been held unconstitutional by lower courts has refused to defend it,

    Emphasis mine.

    If you’re going to assign metaphorical possession of the law to someone, it should be to the legislative branch. Executive branches don’t make laws; if laws can be said to “belong” to anyone it is the legislature.

  23. thusbloggedanderson:

    Nominating Rice doesn’t lose a Senate seat. There. She’s better.

  24. Richard:

    That’s a decent argument for Rice. Is there any argument she would be a better Secretary of State?

  25. LosGatosCA:

    It’s not that complicated –

    SoD – Hagel would be the 3rd Republican appointed in 4 Democratic presidential terms

    SoS – At the same time, Obama considers Rice and the Republicans yell, ‘Benghazi’ followed by a gutless fold.

    Consider how the Republicans went to the mat for someone as transparently worthless as John Bolton.

    It’s not about ‘sticking it’ to any one, it’s about having a credible brand, having a credible bench, and preparing people for important responsibilities for the time when you will be governing.

    Apparently, that;s not the Democratic playbook when it comes to national security issues. Apparently what you see (Republicans in charge, de facto and in facto) is what Democratic leadership is comfortable with.

    It’s wrong, it’s lazy, and it’s self-defeating.

  26. LosGatosCA:

    You mean like William Cohen?

Leave a comment