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View Diary: Inexpert thoughts on today's Supreme Court arguments (72 comments)

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  •  There IS No California Law (4+ / 0-)

    There is no statute in California that grants standing to ballot proponents. Upon certification of the question from the 9th Circuit, the California Supreme Court held that the initiative right (which is constitutional here and thus, sacred, much to the chagrin of us California voters that routinely have to wade through idiotic propositions each election) could not be truly effectuated if the state's officials declined to defend the state's duly passed initiatives and that, historically the state had allowed standing to ballot proponents to defend their initiatives as a necessary way to effectuate the California constitutional right of initiative.  

    Let's be clear, since you claim that denial of standing "would overturn that portion of Calfiornia law that governs enforcement of ballot initiatives."  The United States Supreme Court has NO power to overturn that decision.  SCOTUS cannot trump the highest state court's interpretation of its own state laws when it comes to state court proceedings.  It has no jurisdiction over that question because it does not in any way involve a federal question, which is the ONLY thing that SCOTUS and federal courts have jurisdiction over.

    HOWEVER, that question (standing under state law) is not the standing question at issue in Hollingsworth.  The standing question here is whether Article III of the US Constitution, which governs standing in federal court and sharply limits it, should be interpreted to allow state ballot proponents to have standing in federal court where the state has said "we would like you to find that they have standing."  The 9th Circuit chose to defer to the California Supreme Court on that question, and granted Article III federal court standing to the Prop. 8 proponents because it said that would best effectuate the intent of state law as interpreted by the California Supreme Court.  (But again, there is NO statute at issue; none exists.  Standing in state court was judicially created.) The key issue at SCOTUS is therefore whether Article III federal court standing should be expanded in the way that the 9th Circuit expanded it.

    Hope this clarifies things for you.

    •  Thanks (0+ / 0-)

      I realize I was on thin ice in treating Cooper's arguments as fact. (I also may have misread them, but I think he did cite an actual law.)

      I have to go offline, but I do plan to look into this more later.

      Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

      by Nowhere Man on Wed Mar 27, 2013 at 05:16:32 AM PDT

      [ Parent ]

    •  Well, it strikes me (2+ / 0-)
      Recommended by:
      fenway49, penguins4peace

      as a non-expert in California law, that if the CA supremes say that the intervenor defendants are official representatives of the state, that is California law.

      Whether even that is enough for Article III standing is a different question. My impulse is to say that it probably ought to be.

      Ok, so I read the polls.

      by andgarden on Wed Mar 27, 2013 at 06:05:52 AM PDT

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      •  Well (3+ / 0-)

        Since you're a non-expert, I just have to say that you're looking at this the wrong way.  

        The question of Article III standing is more complicated.  Previously, SCOTUS has only found Article III standing (i.e. federal court standing) where there was a state statute granting standing to ballot proponents or other folks not the automatically-delegated representatives of the state (see Karcher.)  That was the reason that the 9th Circuit decided to certify the standing question to the California Supremes in the first place--because there is no statute in California.  None.  Law, yes, California law yes, as established by the California Supreme Court, which has the power to bind only California.  Subject to the jurisdiction of the US Supreme Court such that it could be "reversed" as the OP originally stated, however? Absolutely not.  The 9th Circuit chose to defer to California on this question and itself grant Article III standing (something that obviously a California court can't do), but that says nothing about whether SCOTUS will agree.  Previously, it has jealously guarded Article III standing--thus, the extensive and primary colloquy yesterday on this issue.  It is clear from yesterday that this SCOTUS is a lot more skeptical on the question than the 9th Circuit, whether genuinely or just as a way to avoid the substantive issue of marriage equality.

        •  Interesting (3+ / 0-)

          Wasn't aware the source was only the Cal. Supreme Court's decision. That is "California law" but, if the SCOTUS has generally required a statute as opposed to common law it may do so here.

          To me these process arguments are a double-edged sword. Today it might keep Prop 8 proponents out of court. What if, tomorrow, a progressive initiative passed, someone sued under the Takings Clause or something to block it, and a Republican administration declined to defend it. Under this standing theory nobody could defend it.

          Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

          by fenway49 on Wed Mar 27, 2013 at 08:51:53 AM PDT

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    •  Yes, I was inexact (2+ / 0-)
      Recommended by:
      penguins4peace, Clem Yeobright

      (OK, wrong :-) in referencing a "law". Here's the passage from the transcript that I was drawing from most heavily (emphasis added) :

      MR. COOPER: What I want to say, Your Honor,
      is according to the California Supreme Court, the
      California Constitution says in terms that among the
      responsibilities of official proponents, in addition to
      the many other responsibilities that they step forward
      and they assume in the initiative process, among those
      responsibilities and authorities is to defend that
      initiative if the public officials which the initiative
      process is designed to control have refused to do it.
      It might as well say it in those terms, Your Honor.
      Cooper seems to be claiming that the California Supreme Court has interpolated into the State's Constitution the automatic delegation of the authority to appeal a case related to a ballot initiative to the initiative's sponsors, if the State's Executive declines to do so or cannot do so in good faith.

      Since Cooper is paraphrasing here, I can't be sure that his claim is accurate, nor can I be sure that the U.S. Supreme Court will accept it. But I can see legal theories that would allow them to do so, particularly when the initiative in question enacts an amendment to the state's Constitution. Since I'm on shaky ground as a non-lawyer,  I don't think it would be productive for me to try to draw this out, but I do note that the U.S. Constitution says very little about the nature of state governments; specifically, it does not seem to prohibit a state from temporarily delegating a limited set of its executive authorities to private citizens. (It would be a good thing if it did; for one, that might put a roadblock in front of the rush to privatize public education. But that's a whole 'nother issue.)

      Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

      by Nowhere Man on Wed Mar 27, 2013 at 09:26:37 AM PDT

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    •  The standing issue (1+ / 0-)
      Recommended by:
      Nowhere Man

      It seems to me that far too much attention is being paid to this whole standing issue. It's understandable for the media and those of us watching these cases, the courts are talking about it and it is an open question in their deliberations. But I would say that the courts are paying too much attention to it as well. Too much importance is attached to the idea of standing, be it in these cases or in cases like the one concerning NSA warrantless wiretaps. It is here a distraction from the actual merits of these cases, which is what the courts at every level should be attending to in any case.

      •  Except that the courts *cannot* do that (2+ / 0-)
        Recommended by:
        Clem Yeobright, shanikka

        The courts have no authority to rule on a case if the petitioners (aka plaintiffs) do not have standing to bring the case to court. (If the courts did have such authority, then we'd really know what an "activist judiciary" looked like.)

        Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

        by Nowhere Man on Wed Mar 27, 2013 at 04:45:06 PM PDT

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        •  Sure they can. (1+ / 0-)
          Recommended by:
          Nowhere Man

          Your comment suggests that I was advocating the courts being able to start cases on its own rather than wait for a case to be brought to it by parties involved in a dispute under the Constitution or federal law. If that's the case, I'm not sure where you'd get that idea.

          Constitutionally, "[t]he 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," and a list of certain specific situations beyond that (controversies between states, for example). The constitution doesn't provide even broad guidelines for who can bring cases, only that "all cases in law and equity" with federal questions are within the judicial power of the U.S. courts.

          The courts themselves, in their own decisions, have largely made this standing monster. They could just as easily decide they don't need or shouldn't guard who can bring actions so closely. They are straining these things pretty fine in some cases, including in these. In the marriage cases, all the parties currently before the court have some real connection with the laws and issues involved, making standing questions a distraction, at best. Dealing with the issues of the case itself on their merits is important. I can't see who any of the standing questions here have any importance whatsoever, no or in the future. In fact, I'd say that such attention does more harm than good precisely because it distracts from the real issues at hand and precedents along those lines would continue to allow the courts or parties in a dispute to avoid the core questions of law and justice in any number of other cases in the future. It really strikes me as a means for the courts to avoid doing their jobs, and giving parties in a dispute a chance to weasel their way out of accountability before the law.

          •  "all cases in law and equity" (2+ / 0-)
            Recommended by:
            mchristi314, Greenfinches

            has, so I understand, a fairly well-known and relatively specific meaning that was in use long before the Constitution was written. No powers are granted to the Courts to try cases that do not fall into one of these two categories.

            "Cases in law", of course, refers to criminal cases.

            "Cases in equity" refers to the right of an (allegedly) injured party to sue for relief from a party that is (allegedly) responsible for the injury.

            Hollingsworth is a case in equity. In order to bring suit, the petitioner must show that there is actual harm being done to them. Otherwise, there is no relief available to them.

            If this restriction were not in place, the Court could essentially go fishing for cases that it wants to rule on; the Justices could even make arrangements for specific petitioners-to-be to bring specific suits. That would represent a dangerous expansion of judicial powers. And yeah, the Court has been known to play games with the rules related to standing, which is obnoxious at best, but still better than having no rules at all.

            Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

            by Nowhere Man on Wed Mar 27, 2013 at 08:51:05 PM PDT

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            •  Thanks (1+ / 0-)
              Recommended by:
              Nowhere Man

              That's helpful, to a point. But I'm still on the side of saying that questions of standing are usually unimportant and distractions.

              I'm in agreement that it would be huge expansion of judicial power to allow the courts to go fishing for cases. That would be very undesirable. But I'm not sure why that isn't a separate issue from the questions of standing before us here. Fishing for cases seems to me to be about judicial conduct.

              Maybe the actual harm part is where I have my hangup and disagreement. I think justice is better service to prevent harms rather than to react to them once they have happened. It would be far better for all involved to able to take my neighbor to court to force him to take down the unsound tree on his property than to have to sue him or her after the next storm caused the tree to crush my house and maybe cause me serious bodily injury in the process. (Yes, I know that there are mechanisms for such a case, but it's more an analogy than a detailed scenario.)

              Maybe an example more to the point. Suppose a state passes a law that forbids ceremonies that have many elements in common with the solemnization of a marriage but where there is no marriage license and levels criminal sanction against its chief participants and allows for removal of tax-exempt status from any organizations related to the event. Such a law would not need to be frequently enforced against clergy, couples, or churches to create a significant effect on their choices of religious ceremonies. Yet, what actual harm has occurred until the state actually tries to charge a pastor or remove tax-exempt status from a religious organization because they bless a couple who does not or cannot obtain a marriage license? It would appear none. It's still a bald faced intrusion on basic freedoms, including the freedom of religion of churches who might wish to bless relationships regardless of legal status. But it should be possible, even without any actual ceremony being prevented, for a church or member of the clergy to sue the state in federal court for the law's violations of the First Amendment to prevent the law's acidic effects, and they should be able to do it without having long, detailed, and arcane discussions about if they have standing or not before the actual merits of the law's constitutionality are dealt with, if they ever would be.

              Such an approach would also have saved the NSA wiretapping cases, too, which I think were too important not to be heard and adjudicated, but between standing and obnoxious matters like "state secrets doctrine" and "sovereign immunity" are practically doomed to never be addressed in the courts, where those questions fundamentally belong.

              •  Yes, the NSA cases are a strong example (1+ / 0-)
                Recommended by:
                mchristi314

                of where the rules on standing really suck. I don't personally agree with the Court's ruling that no real harm has been done to an individual unless they can prove that they've been spied on -- which can't be proven. But my opinion ain't worth much here.

                Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

                by Nowhere Man on Thu Mar 28, 2013 at 07:42:53 AM PDT

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            •  No (1+ / 0-)
              Recommended by:
              Nowhere Man
              "Cases in law", of course, refers to criminal cases.

              "Cases in equity" refers to the right of an (allegedly) injured party to sue for relief from a party that is (allegedly) responsible for the injury.

              "Cases in law" refers to cases for money damages, "cases in equity" refers to cases in which some other relief (like an order to do something or stop doing something) is sought. In England and many systems based on it, they were separate courts for a long time.

              Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

              by fenway49 on Thu Mar 28, 2013 at 05:35:59 AM PDT

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              •  Yes, thanks (again) (0+ / 0-)

                It's been too long, and I should have done some research to refresh my memory. I think the point remains, though, that the Constitution restricts the Court's jurisdiction to cases where the petitioner seeks relief against an actual harm.

                Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

                by Nowhere Man on Thu Mar 28, 2013 at 07:37:54 AM PDT

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                •  It does (1+ / 0-)
                  Recommended by:
                  Nowhere Man

                  restrict it to cases with actual harm. Normally that standard applies to plaintiffs at the outset of litigation. The plaintiffs (challenging Prop 8) clearly had that.

                  The issue of whether these proponents of the ballot initiative can defend the law when the state declines to do so is a more complicated question. If California had appealed, clearly there would be no standing problem. The substitution is the tricky part.

                  Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

                  by fenway49 on Thu Mar 28, 2013 at 08:29:41 AM PDT

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                •  To clarify (1+ / 0-)
                  Recommended by:
                  Nowhere Man

                  The substitution on appeal is the tricky part. If you say no standing, any state government that dislikes any law on its own books can make a decision striking down that law unreviewable, simply by refusing to appeal.

                  Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

                  by fenway49 on Thu Mar 28, 2013 at 08:32:08 AM PDT

                  [ Parent ]

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