Thursday, September 17, 2015
Academics filed no amicus briefs in favor of Petitioner Spokeo.
Two other articles on Article III standing have recently been posted on SSRN:
'Spooky Action at a Distance': Intangible Injury in Fact in the Information Age by Seth F. Kreimer of University of Pennsylvania Law School. Abstract:
Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of "Psychic Injury." Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and space free from spooky entities like "Psychic Injury."
Albert Einstein famously took the position that quantum mechanics could not be a proper and complete theory on the ground that "[P]hysics should represent a reality in time and space, free from spooky actions at a distance." The problem that ultimately overtook Einstein's argument was that experimental results vindicating quantum mechanics stubbornly continued to appear in the journals. The burden of this paper is to demonstrate that spooky "injuries in fact" involving information have stubbornly continued to appear in United States Reports. It demonstrates that the Court has regularly adjudicated the controversies of the information age: disputes regarding illicit acquisition of information, denial of access to information, improper exposure to information and intellectual property. And it argues that the Court will continue to do so.
These adjudications fatally undermine an account of Article III that insists on "direct" "tangible" and "palpable" injuries to physical or economic interests as the price of admission to the federal courthouse, and profoundly alter notions of "particularized" and "imminent" injury. Information is by nature intangible, and information plays an increasingly dominant role in our social, economic, political and cultural life. Information is largely non-rivalrous and non-excludable. Violations of duties regarding information thus regularly result in injuries that are "general" rather than "particularized." And, with the advent of the Internet, informational harm is pandemically "imminent": information can be spookily and instantaneously "present" at opposite ends of the country, or of the globe.
Article III Standing for Private Plaintiffs Challenging Greenhouse Gas Regulations by Bradford C. Mank of University of Cincinnati Law School. Abstract:
An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may never bring climate change suits because such suits are generalized grievances and the Massachusetts exception for GHG suits applies only to states. However, dissenting from the Ninth Circuit’s denial of a rehearing en banc, three judges argued that the panel’s opinion was overly broad in interpreting the Massachusetts decision to deny standing rights to all non-state GHG plaintiffs. In recent district court decisions, two different federal judges concluded that private plaintiffs may have Article III standing to challenge the government’s regulation of climate change or greenhouse gases. In Center for Biological Diversity v. EPA, the Western District of Washington held the plaintiff suffered concrete standing injuries from the defendant EPA’s approval of Washington’s and Oregon’s decisions not to identify any waters experiencing ocean acidification as impaired under the Clean Water Act (CWA). In distinguishing the Washington Environmental Council decision, the district court concluded that the plaintiffs demonstrated local GHG impacts, and local mitigation efforts could partially redress the injuries to their members. In Murray Energy Corporation v. Gina McCarthy, Administrator of EPA, the Northern District of West Virginia concluded that that the plaintiffs sufficiently established that the EPA violated its duty under the Clean Air Act (CAA) to examine the employment impacts of its enforcement and regulations under the Act on employment in the coal mining industry to have standing. The Murray decision’s focus on employment injuries could be used to provide standing in a challenge to GHG regulations. While there is an argument that expanding standing to non-state GHG plaintiffs could flood the federal courts with too many suits, courts can manage the number of climate change suits by requiring a meaningful demonstration of a connection between GHG emissions and harms to the plaintiffs, and by giving substantial deference to reasonable government regulatory policies in this area.
Monday, September 14, 2015
On September 8, 2015, ten current or former law professors filed their Brief of Restitution and Remedies Scholars as Amici Curiae in Support of Respondent.
The brief states (at pp. 1-2):
If this Court were to adopt petitioner’s proposed rule — that a plaintiff who suffers no harm beyond the loss of his legal rights has no standing to sue — it could wreak havoc with the law of restitution and unjust enrichment, barring many long-established causes of action from federal courts. This important body of law long predates the American founding and serves essential functions, especially in private law but in parts of public law as well.
These amici take no position on the underlying statutory claim.
SUMMARY OF ARGUMENT
Petitioner’s sweeping and ill-defined argument that no plaintiff can have standing without proof of “concrete harm” is aimed at claims for statutory minimum damages. The Court should reject this frontal assault on statutory remedies. But whatever the Court does with respect to statutory damages, it should take care not to inadvertently sweep away much of the law of restitution.
The ten individual amici are Mark P. Gergen, Andrew Kull, Douglas Laycock, Colleen P. Murphy, Phil C. Neal, Doug Rendleman, Caprice Roberts, Chaim Saiman, Emily L. Sherwin, and Michael Traynor. Nine of the ten amici participated in drafting the Restatement (Third) of Restitution and Unjust Enrichment as Reporter, Adviser, or on the Members Consultative Group.
Wednesday, September 9, 2015
The post manages, in five short paragraphs, to put words in Linda Greenhouse’s mouth, to mischaracterize the complaint in Spokeo, to flip constitutional standing on its head, and to assert that wealthier is always better.
The post, written by Wen Fa, takes issue with a recent New York Times op-ed by Ms. Greenhouse that primarily asserted that some conservative judges have an expansive reading of the standing doctrine when it suits them for ideological purposes, as in Fisher v. University of Texas, the affirmative-action case currently pending before the Supreme Court. Ms. Greenhouse only mentions Spokeo in the last paragraph, which states in full:
Also on the court’s docket for its new term is a fascinating case that raises the question of whether Congress can confer standing by enacting a law that gives people the right to sue for a technical legal violation that might not amount to the “injury in fact” — actual harm — that would otherwise be necessary to sustain a lawsuit in federal court. The statute at issue in this case, Spokeo, Inc. v. Robins, is the Fair Credit Reporting Act. Similar citizen-suit provisions are common among federal statutes, with this case representing the tip of a very big iceberg. We’ll soon learn more about who these days stands for standing.
The PLF blog post claims that Ms. Greenhouse’s op-ed “lamented the likely result of” Spokeo. As anyone can see from the above quote from the op-ed, she did not even hint at “the likely result” of Spokeo, let alone “lament” it.
Then, PLF lets loose with this doozy of distortion:
In Spokeo v. Robins, PLF argues [presumably, the author means in the amicus brief filed by Pacific Legal Foundation] that Article III injury can’t just be created by congressional fiat, and a plaintiff who sued a website for listing him as wealthier and better educated has no standing to bring his case in federal court. The Court seems poised to adopt our argument . . . .
It is not true that Mr. Robins is just suing Spokeo “for listing him as wealthier and better educated.” That is not “all” that Mr. Robins has alleged, factually or legally. But PLF continues: “All Robins has to complain about . . . is that a person who happens to stumble upon his Spokeo page may think that he has more money and more degrees than he does in reality. But those are desirable traits.” (emphasis added)
Actually, here’s what the First Amended Complaint alleges:
31. The consumer report that Spokeo has compiled about Plaintiff Robins correctly describes his basic identifying information such as address, neighborhood, and siblings’ names; however, for an extensive period of time most of the other information was incorrect. For example, a picture Defendant reported to be an image of Robins was not in fact Plaintiff, the profile incorrectly stated he was in his 50s, that he was married, that he was employed in a professional or technical field, and that he has children.
32. While some changes have been made to Plaintiff’s profile, it continues to represent that he has a graduate degree, that his economic health is “very strong,” and that his wealth level is in the “Top 10%.”
33. Plaintiff has no way of verifying the “economic health” rating Defendant ascribes to him, and denies that his “wealth level” is accurately described.
34. Defendant’s inaccurate report is particularly harmful to Plaintiff in light of the fact that he is currently out of work and seeking employment. In fact, Mr. Robins has been actively seeking employment throughout the time that Spokeo has displayed inaccurate consumer reporting information about him and he has yet to find employment.
The complaint also alleges that Mr. Robins has suffered actual harm to his employment prospects, to his finances, and “in the form of anxiety [and] stress … about his diminished employment prospects.”
In the context of what Mr. Robins alleges, which is that he is trying to find a job, it would, in fact, usually be worse for a prospective employer to think you’re in your 50s than in your 20s, 30s, or 40s. Age discrimination does exist, and employers typically pay younger employees less than older employees. Moreover, depending on the job, it might be worse for a prospective employer to think you’re married with children rather than single and childless. Married parents have more work/life conflicts and family obligations than single people without kids. And if you’re trying to get that first entry-level position as a college grad, it very well could be worse for a prospective employer to think you hold a graduate degree and are in the “top 10%” of people in terms of wealth. The employer might think that you’re overqualified for the position, have a strong sense of entitlement, or expect a higher salary than they’re prepared to offer. Finally, if you look like George Clooney, it would generally be better if a prospective employer doesn't see a photograph purporting to be you that looks like Marty Feldman (unless, of course, the prospective employer is casting for Young Frankenstein). There are studies showing that good-looking people get hired more easily and often than unattractive people.
And those are just the facts that PLF has got wrong. In terms of legal claims, the complaint alleges that, in violation of the FCRA, Spokeo has not (1) adopted reasonable measures to ensure the accuracy of its consumer reports, (2) provided any of the statutorily-required notices to furnishers or users of information contained in the reports, or (3) provided consumers with a toll-free telephone number to request annual file disclosures.
What about PLF’s proclamation that “Article III injury can’t just be created by congressional fiat”? Actually, Congress can create new statutory rights, the violation of which will suffice to grant standing, and Congress has done so hundreds of times and for hundreds of years. As mentioned in respondent Robins' merits brief, the first Congress in 1790 authorized statutory damages for a copyright violation without proof of actual loss. And Justice Story in 1838, speaking of a common-law property right, stated, “Actual, perceptible damage is not indispensable as the foundation of an action. The law tolerates no farther inquiry than whether there has been the violation of a right. If so, the party injured is entitled to maintain his action for nominal damages, in vindication of his right, if no other damages are fit and proper to remunerate him.” Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508 (C.C.D. Me. 1838). Justice Story understood this principle “from [his] earliest reading” and “considered it laid up among the very elements of the common law.”
Literally hundreds of state and federal statutes create private rights of action to encourage compliance with laws meant to protect consumers, workers, and the environment. Many of these statutes authorize statutory damages in recognition that actual damages can sometimes be difficult to prove and to incentivize private plaintiffs to enforce the law.
Spokeo and its seventeen business amici recently conceived a new way to neutralize any statute anywhere that authorizes statutory damages. That is: tar the private right of action with the newfangled pejorative “injury-in-law” (the better to distinguish it from the constitutionally-required “injury-in-fact”) and claim that violation of the statute is “technical,” “trivial,” or not a “real-world” injury – so not good enough for standing.
The sheer audacity of this argument is breathtaking. The vast majority, if not all, of the Supreme Court’s Article III standing cases involve a plaintiff suing a governmental department, agency, or official, asking a court to tell that governmental actor what to do. It is in that sense that the Court has repeatedly stated that the primary concern of the Article III standing doctrine is separation of powers – in most cases, to keep the courts out of the executive branch.
The Spokeo case is a case between private parties, not a case against the government. Here, Spokeo’s newfangled standing doctrine would tear down a pretty large section of the separation-of-powers wall. It would allow federal judges to eviscerate laws that were validly enacted by the legislative branch, by refusing to countenance the violation of those laws as “injury.” And it would nullify statutory damages by requiring proof of actual damages in order to be entitled to statutory damages.
How, exactly, would it uphold separation of powers if judges refuse to honor statutes they disagree with? And who, exactly, would have standing to sue under the FCRA, according to Spokeo and PLF, if Mr. Robins doesn’t?
The more I look into this, the bigger I think this case is.
To get back to PLF’s blog post: why does PLF think “the Court seems poised to adopt [its] argument”? Does it have inside information that five justices are ready to effectively repeal an assortment of federal statutes?
Wednesday, September 2, 2015
Howard Bashman at How Appealing brought attention to a post by Jeffrey Toobin in The New Yorker about a possible upcoming “disaster” for liberals in the October 2015 term in the Supreme Court. Mr. Toobin included affirmative action, abortion, and public-employee unions in “the subjects before the Justices [that] appear well suited for liberal defeats.”
Mr. Toobin could also have included private-law class actions. The Court has granted cert in four cases that could hobble class actions well before the Civil Rules Advisory Committee moves forward in its consideration of the topic. As we’ve previously reported (but not all in one post, if memory serves), these four cases are:
Monday, April 27, 2015
Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.
The Court granted cert. notwithstanding an invited brief from the Solicitor General arguing against review. That brief explained:
The court of appeals held that respondent had established Article III standing to sue petitioner “for publishing inaccurate personal information about [respondent]” because petitioner allegedly had violated respondent’s “statutory rights” protecting his “personal interests in the handling of his credit information.” Pet. App. 1a, 8a. The court below correctly concluded that the publication of such false information is a cognizable Article III injury.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Tuesday, April 14, 2015
Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos entitled Standing (in) for the Government. Sergio reviews Seth Davis’s recent article, Standing Doctrine’s State Action Problem, 91 Notre Dame L. Rev. (forthcoming 2015).
Tuesday, March 3, 2015
Alabama Supreme Court Issues Writ of Mandamus, Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples
This evening the Alabama Supreme Court granted the petition for a writ of mandamus that had been filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. Here is the 134-page per curiam opinion, which concludes with an order enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.
Here is the full text of the order:
The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
The last sentence, of course, refers to the federal injunction issued by Judge Callie Granade against Mobile County probate judge Don Davis last month.
Sunday, February 15, 2015
Last week we noted that an “Emergency Petition for a Writ of Mandamus” had been filed in the Alabama Supreme Court seeking to order probate judges in Alabama not to issue marriage licenses to same-sex couples—or to recognize any marriage licenses issued to same-sex couples. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, claiming to be relators for the State of Alabama itself. You can find a copy of the petition here (as an attachment to Mobile probate judge Don Davis’s filing in the Strawser case).
Late last Friday—after federal judge Callie Granade had issued an injunction the day before forbidding the Mobile probate judge from denying marriage licenses to same-sex couples—the Alabama Supreme Court issued the following order regarding the mandamus petition:
“The respondents are ordered to file answers and, if they choose to do so, briefs, addressing issues raised by the petition, including , but not limited to, any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition. Such answers and briefs shall be filed by 5:00 p.m. on February 18, 2015. Thereafter, the petitioners may file their respective replies no later than 5:00 p.m. on February 20, 2015.”
Kent Faulk has this report on the order. Two Justices—Shaw & Main—dissented from the order, with Justice Shaw calling it “an unprecedented attempt to control several probate courts by means of a rare original petition seeking a writ of mandamus issued by this Court.” He also stated in his dissenting opinion that:
“In order to grant relief to the petitioners, this Court will have to conclude that a probate court is forbidden from following an Alabama federal district court's ruling on the constitutionality of the ministerial acts a probate court performs, which ruling both a federal appellate court and the Supreme Court of the United States have refused to stay pending appeal. In my view, the petition does not provide an adequate foundation for reaching such a conclusion.”
Neither the order nor the dissenting opinions expressed an opinion regarding the constitutionality of Alabama’s prohibition on same-sex marriage. According to this report by Kelsey Stein, Chief Justice Moore in a recent interview “declined to comment further on Granade’s decision because there is a case filed before the Alabama Supreme Court regarding the same issues.”
Friday, February 13, 2015
I have a guest post over at Legally Speaking Ohio about an interesting Ohio Supreme Court case on standing and jurisdiction. The decision is Bank of America v. Kuchta, which Marianna Bettman aptly called “a field day for civil procedure geeks.”
Friday, December 5, 2014
A couple of interesting posts this week about standing issues in some high-profile pending and perhaps-soon-to-be-once-again-pending Supreme Court cases:
- Richard Re, Is Fisher v. University of Texas a Precedent on Jurisdiction? (Re’s Judicata)
- Will Baude, The standing problem in Zivotofsky, revisited (Volokh Conspiracy)
Tuesday, October 14, 2014
The Supreme Court of Ohio issued an interesting decision last week involving standing, subject matter jurisdiction, and whether they can be challenged via Ohio Rule 60(b) after the opportunity for a direct appeal has passed. The case is Bank of America, N.A. v. Kutcha.
Marianna Bettman has an analysis of the opinion, calling it a “Field Day for Civil Procedure Geeks.”
Wednesday, July 23, 2014
By now most folks have seen yesterday’s conflicting rulings over whether the Affordable Care Act authorizes subsidies for individuals who purchase insurance on a federal exchange (as opposed to exchanges run by the states). The D.C. Circuit found that such subsidies were not statutorily authorized (the Halbig case). And an hour later, the Fourth Circuit found that the subsidies were statutorily authorized (the King case).
The merits of these decisions, as a practical matter and in terms of statutory interpretation, have received tremendous attention. But Article III standing was also an issue in both Halbig and King. Who, after all, suffers the constitutionally required “injury in fact” by virtue of receiving a subsidy? The answer: People who would be subject to the individual mandate if they are entitled to the subsidy but would not be subject to the individual mandate (on income grounds) without the subsidy. Here’s how the Halbig majority explained it with respect to one of the plaintiffs in that case, David Klemencic:
Klemencic resides in West Virginia, a state that did not establish its own Exchange, and expects to earn approximately $20,000 this year. He avers that he does not wish to purchase health insurance and that, but for federal credits, he would be exempt from the individual mandate because the unsubsidized cost of coverage would exceed eight percent of his income. The availability of credits on West Virginia’s federal Exchange therefore confronts Klemencic with a choice he’d rather avoid: purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty.
The D.C. Circuit found that this was sufficient for purposes of Article III standing, and the Fourth Circuit reached the same conclusion. From the Halbig majority opinion (footnote omitted):
The government characterizes Klemencic’s injury as purely ideological and hence neither concrete nor particularized. But, although Klemencic admits to being at least partly motivated by opposition to “government handouts,” he has established that, by making subsidies available in West Virginia, the IRS Rule will have quantifiable economic consequences particular to him. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (explaining that a “threatened injury” that is “certainly impending” may “constitute injury in fact” (emphasis and internal quotation marks omitted)). Those consequences may be small, but even an “‘identifiable trifle’” of harm may establish standing. Chevron Natural Gas v. FERC, 199 F. App’x 2, 4 (D.C. Cir. 2006) (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973)); see Bob Jones Univ. v. United States, 461 U.S. 574, 581-82 (1983) (noting that Bob Jones University sued for a tax refund of $21.00). Klemencic thus satisfies the requirement of establishing an injury in fact, and because that injury is traceable to the IRS Rule and redressable through a judicial decision invalidating the rule, we find that he has standing to challenge the rule.
And from the King opinion:
We agree that this represents a concrete economic injury that is directly traceable to the IRS Rule. The IRS Rule forces the plaintiffs to purchase a product they otherwise would not, at an expense to them, or to pay the tax penalty for failing to comply with the individual mandate, also subjecting them to some financial cost. Although it is counterintuitive, the tax credits, working in tandem with the Act’s individual mandate, impose a financial burden on the plaintiffs.
The defendants’ argument against standing is premised on the claim that the plaintiffs want to purchase “catastrophic” insurance coverage, which in some cases is more expensive than subsidized comprehensive coverage required by the Act. The defendants thus claim that the plaintiffs have acknowledged they would actually expend more money on a separate policy even if they were eligible for the credits. Regardless of the viability of this argument, it rests on an incorrect premise. The defendants misread the plaintiffs’ complaint, which, while mentioning the possibility that several of the plaintiffs wish to purchase catastrophic coverage, also clearly alleges that each plaintiff does not want to buy comprehensive, ACA-compliant coverage and is harmed by having to do so or pay a penalty. The harm in this case is having to choose between ACA-compliant coverage and the penalty, both of which represent a financial cost to the plaintiffs. That harm is actual or imminent, and is directly traceable to the IRS Rule.
Monday, November 18, 2013
Earlier this month we covered Chief Justice Roberts’ statement in Marek v. Lane, a case challenging a class action settlement that included cy pres remedies. In his statement, Chief Justice Roberts agreed with the decision to deny certiorari but raised a number of concerns about cy pres remedies, concluding that “[i]n a suitable case, this Court may need to clarify the limits on the use of such remedies.”
Today, Justice Alito issued a similar statement “respecting the denial of the petition for writ of certiorari” in another case involving a class action settlement: Martin v. Blessing (No. 13-169). You can find his six-page statement in today’s order list, beginning on page 13 of the pdf file. It begins:
The petition in this case challenges a highly unusual practice followed by one District Court Judge in assessing the adequacy of counsel in class actions. This judge insists that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.
The judge is U.S. District Judge Harold Baer of the Southern District of New York, and Justice Alito writes that “[b]ased on the materials now before us, I am hard-pressed to see any ground on which Judge Baer’s practice can be defended.” [p.3]
Friday, June 28, 2013
This week the Supreme Court issued its much-anticipated decisions in Windsor v. United States (on the federal Defense of Marriage Act) and Hollingsworth v. Perry (on California’s Prop. 8). Both cases presented significant questions with respect to Article III jurisdiction and standing, which were excellently summarized earlier this year by Marty Lederman’s seven-part series for SCOTUSblog.
In Windsor, a five-Justice majority opinion authored by Justice Kennedy (joined by Ginsburg, Breyer, Sotomayor, and Kagan) found that Article III jurisdiction was proper and that the Court should not invoke prudential grounds to refrain from exercising jurisdiction; the majority then concluded that DOMA was unconstitutional.
In Perry, a five-Justice majority opinion authored by Chief Justice Roberts concluded that the intervenors who supported Proposition 8 lacked Article III standing to challenge the district court’s order declaring Prop. 8 unconstitutional and enjoining California officials from enforcing it. Perry was a particularly interesting 5-4 split: The Chief was joined by Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissented, joined by Thomas, Alito, and Sotomayor.
From a jurisdictional standpoint, one crucial difference was that in Windsor, the federal government enforced DOMA (by denying Windsor the requested refund) and then proceeded to seek review of both the district court and appellate court rulings that DOMA was unconstitutional. As Kennedy puts it: “It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.” In Perry, on the other hand, the California government did not appeal the district court’s order and injunction. Perhaps the standing inquiry in Perry would have come out differently if the California government had adopted a litigation strategy similar to the one the U.S. government took in Windsor.
For anyone counting heads, here’s how each Justice came down on the Article III issues in both cases:
- Kennedy, Alito and Sotomayor supported exercising jurisdiction in both Windsor and Perry. (Alito is somewhat unique as to Windsor, because he argued that the U.S. government “clearly is not a proper petitioner” given its position that DOMA was unconstitutional; he argued instead that jurisdiction was proper because the House of Representatives’ Bipartisan Legal Advisory Group had standing as intervenors.)
- Roberts and Scalia opposed exercising jurisdiction in both Windsor and Perry.
- Ginsburg, Breyer and Kagan supported jurisdiction in Windsor and opposed jurisdiction in Perry.
- Thomas supported jurisdiction in Perry and opposed jurisdiction in Windsor.
Wednesday, March 27, 2013
As covered earlier (e.g., here, here, and here), Windsor presents some interesting issues relating to jurisdiction and Article III standing, to which the Court devoted the first half (almost an hour's worth) of the oral argument .
Tuesday, March 26, 2013
Thursday, March 14, 2013
The University of Pennsylvania Law Review Online has a featured essay by Suzanne B. Goldberg (Columbia) entitled Article III Double-Dipping: Proposition 8's Sponsors, BLAG, and the Government's Interest. It begins:
A major procedural question looms over the two marriage cases currently before the U.S. Supreme Court: Do the parties who seek to defend the marriage-recognition bans have standing to advance their views? The question arises because the governments that would have Article III standing, by virtue of their enforcement authority, are not defending their own laws. Instead, in Hollingsworth v. Perry, private parties are attempting to take up the state government’s mantle to defend Proposition 8, which withdrew marriage rights from same-sex couples in California. And in United States v. Windsor, five members of the House of Representatives leadership seek to defend the federal Defense of Marriage Act in the name of the Bipartisan Legal Advisory Group. Not only are these parties not clearly authorized by the appropriate legislative bodies to pursue such actions, but there are two more fundamental difficulties with the Perry petitioners’ and BLAG’s claims to standing. First, each presents the Article III double-dipping problem to which this Essay’s title refers. The problem arises because there are parties asserting the government’s interest and, therefore, the government’s standing, on both sides of each case. The second problem arises from the premise, essential to the standing claims of both the Perry petitioners and BLAG, that governments can confer their Article III standing on private actors and subsets of legislators. The difficulty is that the government’s standing derives from its interest in enforcing its laws, which is not an interest shared by either group. In this essay, I argue that both the double-dipping problem and the limits on a government’s ability to transfer its standing to private actors in this context leave Proposition 8’s sponsors and BLAG without Article III standing to press their positions. Nor can either group of would-be defenders demonstrate the “concrete and particularized” stake it would need to have standing in its own right rather than on the government’s behalf. In short, neither party can answer the Supreme Court’s question in the affirmative.
Monday, March 4, 2013
Here are links to some recent coverage of last week’s Supreme Court decision in Clapper v. Amnesty International, which rejected a challenge to federal wiretapping procedures for lack of Article III standing:
Tuesday, February 26, 2013
Today the Supreme Court decided Clapper v. Amnesty International (No. 11-1025), covered earlier here. By a 5-to-4 vote, it found that the plaintiffs lacked Article III standing to challenge the 2008 amendments to the Foreign Intelligence Surveillance Act.
Justice Alito wrote the majority opinion (joined by Roberts, Scalia, Kennedy, and Thomas) and Justice Breyer wrote the dissent (joined by Ginsburg, Sotomayor, and Kagan).
Tuesday, January 22, 2013
Over at SCOTUSblog, Prof. Marty Lederman (Georgetown) has a deep dive into the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). Links to the entire series—Understanding standing: The Court’s Article III questions in the same-sex marriage cases—below: