This post describes a friend-of-the-court brief of the old-fashioned variety that is far less common these days; it is a brief written at the Court’s request, ostensibly seeking objective, expert guidance about a discrete subject relevant to the case. What is that discrete subject in this amicus brief? It has to do with standing. Harvard Law prof, Vicki Jackson, was asked to weigh in about “standing” problems suggested by the DOMA case. Professor Jackson has concluded that the set of Republicans in the House of Congress who have brought the appeal do not have “standing” to speak on behalf of the entire Congress, let alone to step into the shoes of the Executive Branch that elected not to defend the law that the appellate court had struck down below.
Likewise, the SCOTUS directly asked the parties in the Proposition 8 case to address a standing problem in that one. Specifically, the parties are supposed to explain how sponsors of the Proposition 8 ballot measure, as opposed to the state of California, which is charged with enforcing state law, had “standing” to bring the appeal that was unsuccessful below and is now pending before the SCOTUS.
Standing is a barrier born of the way the SCOTUS has long interpreted Article III of the Constitution, which expressly limits the kinds of cases that the federal judiciary can hear. Federal courts are supposed to be courts of limited jurisdiction; and the SCOTUS has decided that means these courts are only supposed to hear actual “cases” and “controversies.” This principle derives from the fact that Article III, section 2 uses those words—“cases” and “controversies”—in the short laundry list of the types of legal disputes federal courts are allowed to adjudicate. Here is the whole text:
The judicial Power shall extend to 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; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
An astute reader such as yourself will notice that the word “standing” is not in there. Nor is the word “ripeness” or “mootness,” a couple of the Court’s other favorite “justiciability doctrines.” These doctrines have emerged over the years as the SCOTUS has fleshed out its understanding of the words “cases” and “controversies.”
This development is probably why my husband (also a non-lawyer) insists that “standing is a crock.” Certainly, standing is, in some sense, a court-invented doctrine that permits the court to reduce its own workload. But I, a lawyer, wouldn’t go so far as to say that that makes standing a “crock.” Yet I understand the sentiment because I once felt that way myself. In fact, among law students, I would say I was rather slow to embrace the whole concept—especially in Con Law cases with big social implications. If a dispute over the proper way to interpret a Constitutional provision was a meaty one, if the facts of the case provided a vivid instance of why the provision needed interpretation, and the parties in the suit represented much larger groups that cared about getting those issues resolved in the name of Justice, why should it matter whether some technical “threshold” requirement was satisfied? Indeed, it seemed rather absurd that a case, after years of litigation, could be dismissed at the highest level for “lack of standing”—the rationale for which is the principle of “judicial economy.” How could it be “economical” or efficient to throw out a case on a technicality when so much work had already been put into teeing it up such that the Court could resolve a matter of textual interpretation?
That is what I, as a law student, thought. I have grown since then. Now I rather enjoy these threshold justiciability issues when they arise. (Especially when I am on the defense side of a case and I can really appreciate the value of nifty tricks developed to help judges reduce their workload. . . .)
Shakespeare, however, would not, I think, be a fan of standing. All we have to do is look back at my earliest blogs about Measure for Measure. That play is all about someone pursuing justice whom federal courts would say had no standing to do so—at least initially. Isabella starts out the action by petitioning the authorities on her brother’s behalf. In other words, she steps into his shoes (since he is in jail at the moment) and argues to The Man charged with dispensing justice that her brother’s death sentence for “fornication” is a wee bit harsh. But no sister, no matter how righteous her cause and how right she is about the underlying legal issues, can just step into her brother’s shoes and pursue an appeal of his capital case (or any case) in which her brother had been the loser just because she “cared” about the issues and had some “relationship” to the actual party to the underlying case. And I feel certain that Shakespeare would have seen this as a crock.
Spare him, spare him!
He's not prepared for death. Even for our kitchens
We kill the fowl of season: shall we serve heaven
With less respect than we do minister
To our gross selves? Good, good my lord, bethink you;
Who is it that hath died for this offence?
There's many have committed it.
We shall have to wait and see if the SCOTUS thinks standing, in the DOMA/Prop 8 cases, is a crock or not.