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View Diary: The SCOTUS' choice of cases for review of gay marriage and DOMA (57 comments)

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  •  Apparrently Lost in the Shuffle (11+ / 0-)

    The Supreme Court's order granting cert in the Proposition 8 case directed the parties to address the issue of standing under Article III of the Constitution.  This by itself is an extremely interesting proposition.  The conservative faction of the court (which includes Justice Kennedy) has been parsimonious in granting standing.  

    Standing for the Proposition 8 appellants hinges on the Supreme Court recognizing that California allows citizens to stand in the place of the state when defending state laws if the state itself neglects to do so.

    Traditionally, this approach has been anathema to the current conservative Supreme Court. In order to have standing, an appellant must have a personal stake in the outcome of the litigation.  The conservative majority has consistently sought to shrink standing.

    To grant standing in the Proposition 8 case, the Supreme Court will have to expand -- in a dramatic new way -- the basis for Article III standing.

    Given Bush v. Gore, the result-oriented majority could do anything.  But I doubt they'll say that this case has no stari decisis value for any other decision.  And as an attorney who represents public interest plaintiffs seeking to enforce state and federal environmental laws, it will be very interesting to see how the court comes down on this issue.

    Caught between a prudish rock and a limited-standing hard place.  Delightful.

    This aggression will not stand, man.

    by kaleidescope on Fri Dec 07, 2012 at 06:39:00 PM PST

    •  I agree! (2+ / 0-)
      Recommended by:
      Killer of Sacred Cows, ebohlman

      I can't help but to wonder if some of the justices are not chomping at the bit to chastise Judge Reinhardt (again) regarding the Article III standing issue. The CASC opinion (regarding standing) is a bit of a complication though.

      •  The CASC opinion isn't automatically (0+ / 0-)

        relevant here. It only matters if you accept (as the Ninth did) that if ballot initiative proponents have state-level standing (as the CASC ruled), they should also have Federal (Article III) standing. And the whole issue here is whether there should in fact be the legal equivalent of a hyperlink between state and Federal standing. In general, the current SCOTUS has been loath to expand the qualifications for standing and has acted like it wishes it could narrow them.

        I suspect that Roberts in particular is not terribly comfortable with any court other than his issuing rulings that affect the criteria for standing.

        In a dog-eat-dog world, rabies is an advantage in the short term.

        by ebohlman on Fri Dec 07, 2012 at 10:25:39 PM PST

        [ Parent ]

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