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

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    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-)
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      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

      [ Parent ]

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