All Rise! Standing in Judge Betty Fletcher's Court

• Publication year: 2021

ALL RISE! STANDING IN JUDGE BETTY FLETCHER'S COURT

Thomas D. Rowe, Jr.(fn*)

Abstract: In this essay, based on a talk given at the Washington Law Review's March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce's 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges' votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to supposedly governing doctrine. Based on the findings reported in Pierce's article, one might expect to find Ninth Circuit judges splitting along predictable ideological lines. In this brief survey, I find that some Ninth Circuit panels on which Judge Fletcher has sat do split along ideological lines, but that most are unanimous in their justiciability rulings even when the panels are ideologically mixed-and one finds variations, such as splits among judges appointed by Democratic Presidents and generally regarded as "liberal." Another possible tendency would be for judges to find justiciability when they might be expected to be favorably disposed to the substantive claim on the merits, and to avoid reaching the merits of what might be unappealing claims. Similarly, in some cases on which Judge Fletcher has sat, some judges' votes could be viewed as fitting such patterns, but counterexamples abound. This essay, which focuses on the work of one judge and does not systematically compare votes of judges from different parts of the political spectrum, cannot claim to disprove the political view; but that view finds little if any support in Judge Fletcher's cases.

INTRODUCTION

Sometimes you think of a title that may be too cute, or is at least catchy enough that you have to come up with an article to go with it. My title, All Rise! Standing in Judge Betty Fletcher's Court, may be nifty but could also be somewhat misleading, because I've tried to look at all the cases heard by Senior Ninth Circuit Judge Betty Binns Fletcher that deal with constitutional and prudential justiciability issues.(fn1) Thus, the coverage here of this significant and interesting area includes not only standing but also political questions, ripeness, and mootness.(fn2 ) Nonetheless, the majority of cases deal with standing. I concentrate on decisions in which she has written for the court or separately, while also looking at some in which she has just joined others' opinions. Since Judge Fletcher has been on the Ninth Circuit for three decades, coverage is necessarily selective; I have tried to pick out her most important justiciability cases and to identify patterns about which some generalization may be possible, and also areas in which it does not appear that her decisions fit with what might have been a predicted pattern.

Justiciability is not a field in which one might expect a federal appellate judge to develop in a major way her own distinctive jurisprudence. In contrast to some other areas, such as environmental law,(fn3) the Supreme Court has left few if any broad justiciability questions of first impression unaddressed. Thus to a considerable extent this essay looks not at Judge Fletcher's contributions to the field but rather, through the work of one experienced and distinguished intermediate-court judge, at how the Supreme Court's justiciability doctrines work in application. I have taught these doctrines on a top-down basis in Federal Courts class for decades, and so this essay in part reflects a testing of my own impressions and key points that I have been teaching. It discusses not so much what Judge Fletcher has done, but rather what one experienced Federal Courts teacher has learned on the subject through surveying her justiciability cases.

Part I develops as a point of departure the well-argued thesis from a significant article on standing (which might apply also to other justiciability doctrines): that case outcomes seem to be more determined by judges' apparent political leanings than by articulated doctrines.(fn4) Part II looks at Judge Fletcher's record on review and reports finding no reversals of justiciability opinions she has written, and just one reversal of a justiciability opinion that she has joined. Part III returns to the justiciability-as-politics issue, looking for ideological division in panels on which Judge Fletcher has served. It finds some evidence, but not much, of such division, with some non-ideological splits as well. Part IV takes up another aspect of the same issue, hunting for judicial tendencies to find justiciability in cases involving possibly sympathetic merits claims and the reverse. Again, some cases that could fit such a pattern do appear, but there are many counterexamples.

I. STANDING: LAW OR POLITICS?

While Federal Courts professors teach standard justiciability doctrines, many of us also acknowledge that the area is often regarded as a quite politicized and manipulable corner of the law. The Federal Courts casebook that I co-author(fn5) reproduces extracts from a significant 1999 article by Professor Richard Pierce of the George Washington law faculty.(fn6) Based on several then-recent Supreme Court cases on standing generally, plus a significant number of court of appeals standing decisions in environmental cases, Professor Pierce reluctantly concluded that doctrine was less useful in predicting votes than a political-science view based on ideology, apparently as indicated by the party of the President who had appointed a justice or circuit judge.(fn7) In five Supreme Court cases, a "political scientist with no knowledge of the law of standing would have had no difficulty predicting the outcome of each case and predicting thirty-one of the thirty-three votes cast by Justices with clear ideological preferences . . . ."(fn8)

It is not just that liberals generally favored broad standing while conservatives were for narrower approaches: conservatives favored standing for banks while liberals usually did not, and the votes were reversed when it came to standing for prisoners, employees, and environmentalists.(fn9) I had sometimes thought, and suggested to my students, that voting patterns would be considerably less ideological in lower courts, which are supposed to be applying the Supreme Court's teachings. But Pierce reports that in thirty-three appellate environmental-standing cases in the middle 1990s, Republican appointees voted against standing 43.5% of the time and Democratic ones only 11.1%.(fn10) As Pierce summed up, "I can teach the doctrines . . . only as a vocabulary lesson. The doctrinal elements of standing are nearly worthless as a basis for predicting whether a judge will grant individuals with differing interests access to the courts."(fn11)

II. JUDGE FLETCHER'S RECORD ON REVIEW

To proceed, then, with findings, both some that relate to Pierce's claims and others that do not: First, as best I could find, no court opinion that Judge Fletcher has written on justiciability has been reversed by either the en banc Ninth Circuit or the Supreme Court, nor has a case in which she dissented on a justiciability issue been upheld on further review (which, of course, often did not take place). The Supreme Court has reversed her, of course, including in cases in which she wrote on justiciability issues-but in those cases, it did so on the merits. A prominent recent example...