A "(non)essential limit on our power": standing doctrine and judicial restraint in Hollingsworth v. Perry.

Author:Abbotoy, Joshua

Article III, Section 2 of the United States Constitution grants federal courts broad jurisdiction to consider "Cases" and "Controversies." (1) The Supreme Court has established that there is no "Case" or "Controversy"--and thus no federal court jurisdiction-if a plaintiff has not suffered an "injury in fact" that is likely to be "redressed by a favorable decision." (2) This doctrine, known as standing, plays a vital role in ensuring that the judiciary acts within its granted powers. (3) Despite the doctrine's importance, scholars have long deplored its inconsistent application by the Supreme Court, (4) and the Court itself has admitted that "the concept of 'Art. III standing' has not been defined with complete consistency ... by this Court...." (5)

Last term, in Hollingsworth v. Perry, (6) the Supreme Court found that ballot initiative proponents who intervened to defend their initiative--Proposition 8--against a constitutional challenge had no standing to appeal in federal court because they had not "suffered a concrete and particularized injury" and they were not authorized to represent California's interests. (7) Citing judicial restraint as the rationale behind limitations on standing, the Court vacated the decision of the Ninth Circuit and remanded with instructions to dismiss the case for a lack of standing. (8)

On its face, the judicial restraint argument made by the Court was persuasive. The Court emphasized the public nature of the debate over same-sex marriage and how the standing doctrine prevented the Court from legislating by entering that debate. (9) Upon closer inspection, however, the Hollingsworth decision did not promote judicial restraint in the least. Instead, the Court's inaction amounted to an abdication of its constitutionally granted power to decide "Cases" and "Controversies."


    In 2008, in 111 re Marriage Cases, (10) the California Supreme Court held that the California Constitution allowed same-sex couples to marry. (11) Less than six months later, California voters passed the ballot initiative known as "Proposition 8" that amended the Constitution of the State of California to confine marriage to heterosexual couples. (12)

    Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo-two same-sex couples wanting to marry-brought suit against the State of California in a federal district court. (13) The plaintiffs argued that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution by forbidding marriage between two people of the same sex. (14) When the Attorney General of California conceded the case, the district court allowed the official ballot initiative proponents to intervene. (15) The district court ruled for the plaintiffs and enjoined state officials from enforcing Proposition 8. (16)

    After the State of California chose not to appeal, the ballot initiative proponents attempted to appeal to the Ninth Circuit Court of Appeals. (17) The Ninth Circuit certified a question to the California Supreme Court, asking whether the intervenors had the authority to argue on behalf of the state's interest in a law when its officials declined to do so. (18) The California Supreme Court answered that the intervenors could "assert the people's, and hence the state's, interest in defending the validity of the initiative measure." (19) After receiving this answer, the Ninth Circuit concluded that the intervenors had standing to appeal the case. The Ninth Circuit proceeded to consider the merits of the case and affirmed the district court's holding. (20) The intervenors then petitioned the United States Supreme Court. (21)


    The Supreme Court vacated and remanded with instructions to dismiss. (22) Writing for the majority, Chief Justice Roberts found that the intervenors, who had petitioned the Court, lacked a concrete and particularized injury and thus lacked standing to appeal. (23) Further, the Court found that although the State of California had an interest in defending Proposition 8, the State had not properly authorized the ballot initiative proponents to represent its interest in a federal court. (24)

    1. Ballot Initiative Proponents Lacked Standing to Appeal as Individuals

      The Court considered two arguments by the petitioners in regard to standing. First, the petitioners argued they had individual standing to defend the law. (25) For litigants to have individual standing they must prove three elements: (1) That they suffered a concrete and particularized injury, which is (2) "fairly traceable to the challenged conduct," and (3) "is likely to be redressed by a favorable judicial decision." (26) Appellants, like plaintiffs at the trial stage, are required to prove these elements with respect to an injury arising from the trial court judgment.27 The issue of individual standing turned on whether the district court's judgment had inflicted a concrete and particularized injury on the petitioners.

      The Court found that petitioners had not suffered such an injury, because the district court's decision did not order the ballot initiative proponents to do or refrain from doing anything. (28) On appeal, the proponents did not seek a remedy to a particularized injury, but a generalized one, because they sought a remedy for the invalidation of a democratically enacted statute. (29) The Court had historically refused to grant standing to litigants claiming a generalized grievance, (30) citing either constitutional or prudential considerations. (31) The Hollingsworth decision aligned with this precedent, implying that to grant standing would be to allow "concerned bystanders" to bring claims into federal court. (32)

    2. Ballot Initiative Proponents Were Not Authorized to Represent the State of California's Interests in Court

      The Court also found that the petitioners did not have standing to represent the State of California. (33) The petitioners argued that even if they had not suffered a particularized injury, the State of California had suffered such an injury, and they had been authorized to act as agents for California's interest in the matter. (34) The vital issue for the Court to resolve was the content of the test that determines whether an individual is authorized to represent a state's interest.

      On the issue of standing as agents of the state, both the majority and dissent relied upon Karcher v. May (35) and Arizonans for Official English v. Arizona. (36) In Karcher, two New Jersey legislators sought to defend a law that had passed while they were in office. (37) The Court found, however, that the legislators lost standing after leaving office--initially, they had "participated in [the] lawsuit in their official capacities as presiding officers of the New Jersey Legislature," but after leaving office, "they lack[ed] authority to pursue this appeal on behalf of the legislature." (38) The Hollingsworth majority argued that the Karcher decision had turned on federal standing law (39) and not on whether New Jersey law authorized the former legislators to defend state interests. (40) Although the Karcher decision did not specifically use the word "agent," the Hollingsworth majority argued that Karcher did not support the proposition that a state could simply nominate a third party as an agent. (41)

      The majority also looked to Arizonans, which had been dismissed on grounds other than standing but contained dicta on which both the petitioners and respondents relied. (42) The facts in Arizonans...

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