whole column.

.

I can't effectively excerpt the Greenhouse column on gay rights.

http://opinionator.blogs.nytimes.com/2012/12/12/standing-and-delivering/?hp


"Is it heretical of me, or merely quirky, to find myself nearly as fascinated by the procedural game the Supreme Court is playing in the same-sex marriage cases as I am by the underlying merits of the two appeals the court has agreed to decide?
After all, same-sex marriage is legal in nine states and the District of Columbia, and public opinion on the issue is evolving rapidly in other parts of the country, with or without the blessing of the United States Supreme Court. On the other hand, the procedural minefield the court has laid around these cases may hold implications reaching well beyond the domain of gay rights — for the relationship of states to their citizens and for the balance of power between the president and Congress.
I say “may”: the court, never exactly a model of transparency, was more than usually opaque in the orders it issued last Friday afternoon.
In accepting Hollingsworth v. Perry, the case on the constitutionality of California’s Proposition 8, prohibiting same-sex marriage, the justices instructed the parties to brief and argue the preliminary question “whether petitioners have standing under Article III, Section 2 of the Constitution in this case.”
And in United States v. Windsor, the challenge to the Defense of Marriage Act, which bars federal recognition of same-sex marriages that are valid under state law, the court posed these additional 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.”
To start with what’s clear about these questions: Article III, Section 2 is the constitutional provision that establishes the jurisdiction of the federal courts. From its earliest days, the Supreme Court has interpreted Article III as limiting federal jurisdiction to concrete cases, ongoing disputes between parties with an actual stake in the outcome. The court does not issue advisory opinions, as the justices informed President George Washington, whose secretary of state, Thomas Jefferson, had requested one on the president’s behalf.
The Constitution doesn’t use the word “standing,” but the concept plays a crucial role in the determination of Article III jurisdiction. In order to have standing to proceed in federal court, a plaintiff must have suffered actual harm rather than have a generalized grievance; the harm must have been caused by something the defendant did; and the problem can actually be addressed by the decision that the plaintiff seeks. (These requirements are usually referred to as injury-in-fact, causation and redressability.)
The standing doctrine has for years been a major site of contestation between liberal and conservative judges, between those whose priority is maintaining access to court to the greatest degree possible and those who believe that the constitutional separation of powers makes the courts ill-suited to resolve many of the problems that people try to bring to them. Chief Justice John G. Roberts Jr. and the court’s other conservatives are decidedly in the latter camp, while the more liberal justices are somewhat less decidedly in the former. The chief justice has long made it clear that he cares a lot about keeping a tight lid on standing.
Standing has been an issue in the Proposition 8 case ever since the state of California decided not to appeal Federal District Judge Vaughn Walker’s 2010 ruling that the proposition was unconstitutional. The appeal to the United States Court of Appeals for the Ninth Circuit was carried on by a group of people who had worked to get the proposition adopted. The Ninth Circuit questioned whether this group had the requisite Article III standing, and asked the California Supreme Court to tell it whether under California law, a ballot measure’s proponents are regarded as properly standing in the state’s shoes if the state decides not to defend the measure. When the state court answered yes, the Ninth Circuit took the answer as sufficient and proceeded to decide the appeal, finding Proposition 8 unconstitutional.
Whether standing under state law translates into standing for the purposes of Article III is a question that the United States Supreme Court has poked at but never resolved. Whether this is the right case in which to do so remains to be seen, but it was not particularly surprising for the court to raise the issue. In fact, in an era of direct democracy run amok, with voters being presented with extreme propositions that no rational state government would wish to embrace, a Supreme Court decision on who can carry the ball into federal court is probably overdue.
The justices’ order in the DOMA case is a different matter. Here, the court’s concern seems to be with the fact that the Obama administration dropped its defense of the Defense of Marriage Act in February 2011, when the Windsor case was pending before the United States Court of Appeals for the Second Circuit. The administration announced that while it would continue to apply DOMA, under the president’s constitutional duty to enforce laws, it now believed that statutes discriminating on the basis of sexual orientation had to meet a heightened standard of judicial scrutiny, a test that it concluded DOMA would fail.
As required by law, Attorney General Eric H. Holder Jr. notified Congress of the administration’s decision to stop defending DOMA in court. “Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases,” Attorney General Holder said in his letter to Representative John A. Boehner, the House speaker. Democrats in Congress wanted no part of defending DOMA, even though the statute had passed both houses in 1996 by big bipartisan majorities and was signed into law by President Bill Clinton. So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch’s abandoned defense of DOMA. The Republican members of the group, bipartisan in name but not in fact, hired Paul D. Clement, solicitor general in the administration of President George W. Bush, to handle their DOMA defense.
The executive branch’s abandonment of a legal position is not an everyday affair, but it’s hardly rare. Just recently, Solicitor General Donald B. Verrilli Jr. notified the Supreme Court that the government no longer believed it was on the right side of a case on immunity for federal prison guards accused of assaulting an inmate. The government’s immunity position had prevailed in the United States Court of Appeals for the Third Circuit, and the Supreme Court had agreed in September to hear the inmate’s appeal, Millbrook v. United States. Now, Mr. Verrilli told the court last month, the government was prepared to argue that the Third Circuit’s decision was wrong and should be overturned. Taking that development in stride, the justices are keeping the case on the calendar and last week appointed a private lawyer, Jeffrey S. Bucholtz, to argue the government’s abandoned position.
Paul Clement himself, as solicitor general, informed Congress in 2004 that the government would not defend the constitutionality of a law requiring public mass transit agencies, as a condition of receiving federal money, to refuse to accept advertisements urging the legalization of marijuana. A Federal District Court had held that the ban amounted to viewpoint discrimination, prohibited by the First Amendment, a decision that Mr. Clement characterized as correct in his letter to the Senate legal counsel. “The government does not have a viable argument to advance in the statute’s defense and will not appeal the district court’s decision,” he wrote. While that case never reached the Supreme Court, it’s one example among many to show how often these issues arise.
That makes all the more puzzling the court’s concern about whether it has jurisdiction in the DOMA case. While the government and the plaintiff, Edie Windsor, may agree about the law’s unconstitutionality, they maintain opposite positions on whether Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State. Had she been married to a man, she would have inherited the property tax-free. With DOMA barring the federal government from recognizing same-sex marriage, and the Obama administration taking the position that it will enforce the law until the Supreme Court or Congress tell it otherwise, there certainly seems to be a controversy between the parties sufficient to meet the test of Article III jurisdiction.
The standing of the House Republicans to carry on the litigation seems a closer question. This so-called bipartisan group doesn’t even speak for the House of Representatives, let alone Congress. While the group has filed friend-of-the-court briefs on behalf of Congress in several cases since its creation 20 years ago, its authority to stand in the executive branch’s shoes as a party to a case is indistinct, to say the least. The court on Tuesday appointed Vicki C. Jackson, a Harvard law professor and an expert on federal jurisdiction, to argue the positions that neither side in the Windsor case is taking: that the court has no jurisdiction and that the House group has no standing. Her participation promises to turn this already intriguing case into a real – to borrow a phrase – intellectual feast.
If the justices find that the House group lacks standing, that would be enough to make the court dismiss the case – a victory for Ms. Windsor, since she won in both lower courts. Given the sketchiness of the group’s claim to standing, the question remains why the court is turning cartwheels to get at the underlying question of jurisdiction, of whether the administration’s agreement with the appeals court that the law is unconstitutional means that the Supreme Court has no power to decide the case.
My initial thought was that in granting the case, the court was giving itself a way out in the event that it got into too much of a wrangle on the merits. Under this scenario, the justices would be using the jurisdictional issue as a kind of safety valve for a deeply polarized court. But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.
So here’s another theory about what’s going on at the court, and I emphasize that it’s just a theory. I suspect there is a profound battle over the meaning of Article III jurisdiction, an issue proving so divisive that the justices haven’t yet permitted it to fully surface. There was a hint of this last term, in a decision that never saw the light of day. The case was First American Financial v. Edwards, challenging a provision of an obscure federal law, the Real Estate Settlement Procedures Act (RESPA), under which home buyers defrauded by title companies can sue for damages without needing to show that they suffered an actual financial injury. While Congress indisputably conferred on these consumers the right to sue, the question was whether it was a grant of standing that met the requirements of Article III.
The case was argued in December of last year, and Chief Justice Roberts assigned the opinion to Justice Clarence Thomas. That was not apparent at the time to the world outside the court, but it became apparent as the term went on without a decision and it was clear that Justice Thomas was the only member of the court who had not produced an opinion from the December argument sitting. By late spring, with the health care case pending, it was easy to forget about First American Financial. On June 28, the last day of the term, health care decision day, the court announced that it was dismissing the case as “improvidently granted.”
What was the story behind this baffling “never mind”? All I’m sure of is that there is one. My guess is that Justice Thomas had drafted and circulated an opinion, grounded in an extremely narrow reading of Article III jurisdiction, that was so sweeping as to disable Congress from passing laws that along with granting statutory rights also give people access to court to vindicate those rights. I suspect it was an opinion so radical in its implications – a kind of jurisdictional nuclear option — that Justice Thomas was unable to hold a majority, and that the court remained so divided in the aftermath that no one else could put together a majority as the term’s clock ran out.
If I’m right, the First American debacle resolved nothing beyond pushing off to another day, another case, the battle over the dimensions of federal jurisdiction. Granted, this was not everyone’s first thought upon hearing that the Supreme Court would rule on a Defense of Marriage Act case. It wasn’t mine, either. But as I said at the beginning of this column, it’s fascinating."