March 27, 2013
SCOTUS Oral Argument in U.S. v. Windsor
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 .
March 26, 2013
SCOTUS Oral Argument in Hollingsworth v. Perry
March 14, 2013
Goldberg on Article III standing in the SCOTUS same-sex marriage cases (Perry and Windsor)
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.
March 04, 2013
More Coverage of Clapper v. Amnesty Int'l
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:
February 26, 2013
SCOTUS Decision in Clapper v. Amnesty International: Article III Standing
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).
January 22, 2013
Lederman: Article III Standing in the SCOTUS Same-Sex Marriage Cases
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:
January 18, 2013
Lederman: More on Article III Standing in the SCOTUS Same-Sex Marriage Cases
Now on SCOTUSblog is a second post by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (II).
January 17, 2013
Lederman on Article III Standing in the SCOTUS Same-Sex Marriage Cases
Now on SCOTUSblog is the first of several posts by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (I).
December 13, 2012
Even More on Article III Standing in Hollingsworth & Windsor
- Walter Dellinger, No Harm, No Standing (Slate)
- Linda Greenhouse, Standing and Delivering (N.Y. Times)
December 11, 2012
More on Standing & Jurisdictional Issues in the SCOTUS Same-Sex Marriage Cases
Today the Supreme Court issued an order in United States v. Windsor (docket no. 12-307) appointing Prof. Vicki Jackson (Harvard) “to brief and argue this case, as amicus curiae, in support of the positions that the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case, and that the Bipartisan Legal Advisory Group of the United States House of Representatives lacks Article III standing in this case.”
For more coverage, check out Lyle Denniston (SCOTUSblog).
December 10, 2012
Standing Issues in the Same-Sex Marriage Cases (Hollingsworth & Windsor)
We covered earlier the additional questions the Supreme Court asked the parties to brief in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307), especially on the issue of Article III standing. Here’s some recent coverage of those issues:
- Prawfsblawg, by Howard Wasserman (Florida International)
- SCOTUSblog, by Neal Devins & Tara Grove (William & Mary)
December 07, 2012
SCOTUS Cert Grants of Interest: Hollingsworth v. Perry; U.S. v. Windsor; Oxford Health Plans v. Sutter
Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the Second and Third Circuits have held) or exceeds those powers (as the Fifth Circuit has held) by determining that parties affirmatively "agreed to authorize class arbitration," Stolt-Nielsen, 130 S. Ct. at 1776, based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.
Not surprisingly, the cert grants in two cases on same-sex marriage—Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307)—have garnered considerable attention. The Court asked the parties in these cases to brief some additional questions that may be of particular interest to our readers, including an issue that’s has been all over the Court’s docket this Term – standing.
In Hollingsworth, the Court ordered:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: whether petitioners have standing under Article III, §2 of the Constitution in this case.
In Windsor, the Court ordered:
In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
October 28, 2012
SCOTUS Oral Argument in Clapper v. Amnesty International: Article III Standing to Challenge Federal Wiretapping Procedures
Although Hurricane Sandy may change things, the Supreme Court is still – as of this post anyway – scheduled to hear oral argument tomorrow in Clapper v. Amnesty International. The issue is whether the plaintiffs have Article III standing to challenge the 2008 amendments to the Foreign Intelligence Surveillance Act. Here are a few posts of interest:
- SCOTUSblog, Argument preview: Can global wiretaps be challenged? (Lyle Denniston)
- Lawfare, Why Clapper Matters: The Future of Programmatic Surveillance (Steve Vladeck)
- Slate, Why Amnesty Should Lose at the Supreme Court (Eric Posner)
For links to all the merits and amicus briefs, head to SCOTUSblog’s case file.
PS: To everyone in Sandy’s exceptionally wide path, stay safe.
June 28, 2012
No SCOTUS Opinion in Article III Standing Case: First American Financial v. Edwards
With millions tuning in to hear the Supreme Court’s final day of decisions, many were disappointed to hear today’s ruling in…
The writ of certiorari was dismissed as improvidently granted in a one-sentence order.
June 19, 2012
Elwood: "Reading the Tea Leaves on First American Financial Corp. v. Edwards"
While the nation waits with bated breath for the Supreme Court's ruling in the health care case(s), readers of this blog may be anticipating even more eagerly its decision in First American Financial Corp. v. Edwards, a case on Article III standing and this Term's oldest argued case without a decision. First American hasn't garnered as much chatter and speculation as bigger fish on the docket, but into that void comes this post from John Elwood (Volokh Conspiracy).
June 18, 2012
Standing to Oppose a Co-Party's Motion for Summary Judgment
Jonathan Wolfson, a Fifth Circuit clerk, has published "Warring Teammates: Standing to Oppose a Co-Party's Motion for Summary Judgment," 60 Drake L. Rev. 561.
summary judgment, who has standing to oppose the motion? Obviously the plaintiff
has standing to oppose, but what about the other co-defendant? Even supposing
the co-defendant has standing if the plaintiff opposes, is that standing
contingent on the plaintiff’s opposition? Current jurisprudence in federal
courts and prior scholarship are scarce and in disagreement which leaves parties
without ground on which to base their answers. A simple answer to this quandary
might assume parties sitting on the same side of a case may not oppose one
another (in the absence of cross-claims). This article contends that sides of
the case on which parties sit are an inappropriate focal point. The focus should
instead be on which side of a particular controversy parties stand. Individuals
opposed to co-party motions should have the opportunity to oppose because the
operative criterion is adversity of position.
The minimal judicial
consensus and legal literature discussing such a scenario creates prediction
problems for litigators in multi-party litigation. The lack of certainty may
generate confusion or even conflict between co-parties seeking to advance a
common objective – winning the lawsuit – while simultaneously advancing their
own unique interests – minimizing costs and damages for a particular client. The
unique interests can create a prisoner’s dilemma in which minimizing one party’s
losses may maximize a co-party’s. This article seeks to build a theory upon
which future legal consensus on co-party standing to oppose motions might be
This article derives and applies principles from appellate
standing and the right of intervention to support permitting co-party opposition
to motions. The “aggrieved” standard of appellate standing and intervention’s
justifications of “adequate representation” and “unique perspective” inform the
otherwise minimal development of a theory permitting co-party motion opposition.
Permitting opposition to co-defendant motions by co-parties would provide
predictability and ensure parties have their voices heard on issues of interest
without sacrificing courtroom efficiency.
May 21, 2012
SCOTUS Cert. Grant of Interest: Article III Standing to Challenge Federal Wiretapping Procedures
Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.
The Solicitor General’s question presented also provides the following background on the issue:
Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)—referred to here as Section 1881a—allows the Attorney General and Director of National Intelligence to authorize jointly the “targeting of [non-United States] persons reasonably believed to be located outside the United States” to acquire “foreign intelligence information,” normally with the Foreign Intelligence Surveillance Court’s prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Respondents are United States persons who may not be targeted for surveillance under Section 1881a. Respondents filed this action on the day that Section 1881a was enacted, seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a.
You can find links to the Second Circuit’s opinion below and the cert-stage briefing at SCOTUSblog’s casefile.
March 14, 2012
Hall on Standing of Intervenor-Defendants in Public Law Litigation
Matthew Hall (University of Georgia) has posted Standing of Intervenor-Defendants in Public Law Litigation to SSRN.
Unless the plaintiff has a personal stake in the outcome, Article III of the United States Constitution requires federal courts to dismiss a plaintiff’s claim for lack of standing. That much is clearly established by decades of precedent. Less understood, however, is the degree to which Article III also requires defendants to possess a personal stake. The significance of defendant standing often goes unnoticed in case law and scholarship, because the standing of the defendant in most lawsuits is readily apparent:any defendant against whom the plaintiff seeks a remedy has a personal interest in defending against the plaintiff’s claim.
But the issue of standing to defend takes on outsized importance when third parties who are not targeted by the plaintiff’s requested remedy seek leave to intervene in order to oppose the plaintiff’s claim for relief. In cases featuring intervenor-defendants — often cases that concern important issues of public law — the personal-stake requirement becomes a real and not merely theoretical concern for the defendant. The problem is well illustrated by pending cases that address the constitutionality of California’s Proposition 8 and the federal Defense of Marriage Act. In each case, the executive branch officials named as defendants declined to defend the challenged law, prompting a nonparty with a questionable personal stake to seek to intervene to defend against a plaintiff’s claim. The prevailing plaintiff-centered model of standing does not lend itself readily to assessing whether such volunteer defendants have an interest sufficient to create a case or controversy.
This Article develops a model of defendant standing based on the functions that standing doctrine is intended to serve, and derived from the cases in which the U.S. Supreme Court has considered the personal stake of defendants under Article III. Under this model, absent a traditional injury in fact, intervenor standing to defend in public law litigation is appropriate only where state or federal law confers on the intervenor the authority to represent the government’s interest. This Article then illustrates the application of that model in the Proposition 8 and DOMA cases, and concludes that the intervenors in the Proposition 8 litigation do have standing to defend, while the intervenors in the DOMA litigation do not.
June 25, 2011
SCOTUS Cert Grant of Interest on Article III Standing
This past week was a busy one at the Supreme Court, but we wanted to note that Monday’s orders included a grant of certiorari in First American Financial Corp. v. Edwards (No. 10-708). The Court granted cert. only as to question 2, which involves Article III standing. From the cert. petition’s questions presented (with a little cutting and pasting to incorporate those parts of question 1 that were referenced in question 2)...
Section 8(a) of the Real Estate Settlement Procedures Act of 1974 ("RESPA" or "the Act") provides that "[n]o person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding ... that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person." 12 U.S.C. § 2607(a). Section 8(d)(2) of the Act provides that any person "who violate[s]," inter alia, § 8(a) shall be liable "to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service." Id. § 2607(d)(2).
2. Does [a private purchaser of real estate settlement services] have standing to sue under Article III, § 2 of the United States Constitution, which provides that the federal judicial power is limited to "Cases" and "Controversies" and which this Court has interpreted to require the plaintiff to "have suffered an 'injury in fact,'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), [in the absence of any claim that the alleged violation affected the price, quality, or other characteristics of the settlement services provided]?
SCOTUSblog’s case file is available here, which contains links to the Ninth Circuit’s opinion below and the cert-stage briefs.
June 02, 2011
SCOTUS Decision in Camreta v. Greene
Last week’s Supreme Court decision in Camreta v. Greene (09-1454) involved a section 1983 action for damages based on alleged violations of the Fourth Amendment in the interview of a nine-year-old elementary-school student by state officials without a warrant or parental consent. The Ninth Circuit held that the officials violated the Fourth Amendment but were entitled to qualified immunity “because the constitutional right at issue was not clearly established under existing law.” [Slip Op. 2]
What makes the case particularly interesting from a Federal Courts standpoint is that the officials (who ultimately won in the Ninth Circuit on qualified immunity grounds) sought certiorari to challenge the Ninth Circuit’s conclusion that their conduct violated the Fourth Amendment. So the first question the Court had to address was: “may government officials who prevail on grounds of qualified immunity obtain our review of a court of appeals’ decision that their conduct violated the Constitution?” [Slip Op. 2] The answer: yes, according to the majority opinion authored by Justice Kagan and joined by Chief Justice Roberts and Justices Scalia, Ginsburg and Alito. (One commentator described it as an “interesting lineup.”)
Justice Kagan first rejects the argument that the officials lack standing under Article III [Slip Op. 6-7]:
Th[e] Article III standard often will be met when immunized officials seek to challenge a ruling that their conduct violated the Constitution. That is not because a court has made a retrospective judgment about the lawfulness of the officials’ behavior, for that judgment is unaccompanied by any personal liability. Rather, it is because the judgment may have prospective effect on the parties. The court in such a case says: “Although this official is immune from damages today, what he did violates the Constitution and he or anyone else who does that thing again will be personally liable.” If the official regularly engages in that conduct as part of his job (as Camreta does), he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action. Only by overturning the ruling on appeal can the official gain clearance to engage in the conduct in the future. He thus can demonstrate, as we demand, injury, causation, and redressability.
She then rejects the argument that the appeal should be disallowed for prudential reasons. Although she recognizes that the Court has “generally declined to consider cases at the request of a prevailing party,” and that “[o]ur resources are not well spent superintending each word a lower court utters en route to a final judgment in the petitioning party’s favor,” she concludes that qualified immunity cases are “in a special category when it comes to this Court’s review of appeals brought by winners.” [Slip Op. 8]
The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or statements in opinions. They are rulings that have a significant future effect on the conduct of public officials—both the prevailing parties and their co-workers—and the policies of the government units to which they belong. And more: they are rulings self-consciously designed to produce this effect, by establishing controlling law and preventing invocations of immunity in later cases. And still more: they are rulings designed this way with this Court’s permission, to promote clarity—and observance—of constitutional rules. [Slip Op. 8-9 (citations omitted)].
Justice Kagan clarifies that the Court’s conclusion “addresses only our own authority to review cases in this procedural posture. The Ninth Circuit had no occasion to consider whether it could hear an appeal from an immunized official: In that court, after all, S. G. [the plaintiff—not to be confused with the Solicitor-General] appealed the judgment in the officials’ favor. We therefore need not and do not decide if an appellate court, too, can entertain an appeal from a party who has prevailed on immunity grounds.” [Slip Op. 13]
Ultimately, however, the Court does not reach the merits of the Ninth Circuit’s Fourth Amendment holding, finding “a separate jurisdictional problem . . . . This case, we conclude, is moot.” [Slip Op. 14]. As Justice Kagan explains, S. G. “can no longer claim the plaintiff’s usual stake in preserving the court’s holding because she is no longer in need of any protection from the challenged practice.” [Slip Op. 15]
After we granted certiorari, we discovered that S. G. has moved to Florida, and has no intention of relocating back to Oregon. What is more, S. G. is now only months away from her 18th birthday—and, presumably, from her high school graduation. S. G. therefore cannot be affected by the Court of Appeals’ ruling; she faces not the slightest possibility of being seized in a school in the Ninth Circuit’s jurisdiction as part of a child abuse investigation. [Slip Op. 15]
Having concluded that the case is moot, Justice Kagan noted that the Court’s “‘established’ (though not exceptionless) practice in this situation is to vacate the judgment below. See Munsingwear, 340 U. S., at 39.” [Slip Op. 16]
In this case, the happenstance of S. G.’s moving across country and becoming an adult has deprived Camreta of his appeal rights. Mootness has frustrated his ability to challenge the Court of Appeals’ ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school. We therefore vacate the part of the Ninth Circuit’s opinion that addressed that issue . . . . [Slip Op. 18]
As for the other opinions in the case, Justice Sotomayor (joined by Justice Breyer) writes a concurring opinion. She agrees with the majority “that this case is moot and that vacatur is the appropriate disposition.” In light of that conclusion, Justice Sotomayor would not have reached “the question whether Camreta, as a prevailing party, can obtain our review of the Ninth Circuit’s constitutional ruling.”
Justice Kennedy, joined by Justice Thomas, writes a dissenting opinion arguing that Camreta lacked standing to seek Supreme Court review. The opinion begins:
Today’s decision results from what is emerging as a rather troubling consequence from the reasoning of our recent qualified immunity cases. The Court is correct to note the problem presented when, on the one hand, its precedents permit or invite courts to rule on the merits of a constitutional claim even when qualified immunity disposes of the matter; and, on the other hand, jurisdictional principles prevent us from reviewing those invited rulings. It does seem that clarification is required. In my view, however, the correct solution is not to override jurisdictional rules that are basic to the functioning of the Court and to the necessity of avoiding advisory opinions. Dictum, though not precedent, may have its utility; but it ought not to be treated as a judgment standing on its own. [Dissenting Op. 1]
He writes later [Dissenting Op. 11-12 (citations omitted)]:
The Court’s analysis appears to rest on the premise that the reasoning of the decision below in itself causes Camreta injury. Until today, however, precedential reasoning of general applicability divorced from a particular adverse judgment was not thought to yield standing to appeal. . . .
Camreta’s asserted injury is caused not by the Court of Appeals or by respondent but rather by the independent action of some third party not before the court—that is, by the still-unidentified private plaintiffs whose lawsuits Camreta hopes to avoid. This circumstance distinguishes the present case from requests for declaratory or injunctive relief filed against officeholders who threaten legal enforcement. An inert rule of law does not cause particular, concrete injury; only the specific threat of its enforcement can do so. . . . Without an adverse judgment from which to appeal, Camreta has in effect filed a new declaratory judgment action in this Court against the Court of Appeals. This is no more consistent with Article III than filing a declaratory judgment action against this Court for its issuance of an adverse precedent or against Congress in response to its enactment of an unconstitutional law.
Justice Kennedy concludes by suggesting that “the Court might find it necessary to reconsider its special permission that the Courts of Appeals may issue unnecessary merits determinations in qualified immunity cases with binding precedential effect.” [Dissenting Op. 13] On this point Justice Scalia expresses some sympathy, even though he joins Justice Kagan’s majority opinion. He writes in a brief concurring opinion: "I join the Court’s opinion, which reasonably applies our precedents, strange though they may be. The alternative solution, as JUSTICE KENNEDY suggests, is to end the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity. See Saucier v. Katz, 533 U. S. 194 (2001). The parties have not asked us to adopt that approach, but I would be willing to consider it in an appropriate case."