Do Prop 8 Proponents Have Standing To Appeal? Ctd

Be prepared for some fascinating right-wing cognitive dissonance. What happens when a conservative approach to jurisprudence, which often takes a very strict view of who has standing to appeal, meets the Christianist demand that gay people be ostracized in civil society. Walker, as throughout, has represented the real conservative position on this, and his denial of standing to the Prop 8 supporters is one which John Roberts has a history of backing. From Jeffrey Toobin's profile of Roberts last year:

One case that Roberts argued during his tenure in the Solicitor General’s office in George H. W. Bush’s Administration, Lujan v. National Wildlife Federation, seems to have had special resonance for him. The issue involved the legal doctrine known as “standing”one of many subjects before the Supreme Court that appear to be just procedural in nature but are in fact freighted with political significance. “One of the distinctive things about American courts is that we have all these gatekeeper provisions that keep courts from getting involved in every single dispute,” Samuel Issacharoff, a professor at New York University School of Law, says. “The doctrine of standing says that you only want lawsuits to proceed if the plaintiffs are arguing about a real injury done to them, not simply that they want to be heard on a public-policy question.” 

Liberals and conservatives have been fighting over standing for decades. “Standing is a technical legal doctrine, but it is shorthand for whether courts have a role in policing the conduct of government,” Issacharoff says. “Typically, the public-interest advocates, usually on the liberal side of the spectrum, favor very loose standing doctrines, and people who want to protect government from scrutiny, who tend to be on the conservative side, want to require more and more specific standing requirements.”

Lujan v. National Wildlife Federation was one of the Rehnquist Court’s most important standing cases. The environmental group had challenged the Reagan Administration’s effort to make as much as a hundred and eighty million acres of federal land available for mining. In an argument before the Court on April 16, 1990, Roberts said that the mere allegation that a member of the National Wildlife Federation used land “in the vicinity” of the affected acres did not entitle the group to standing to bring the case. “That sort of interest was insufficient to confer standing, because it was in no way distinct from the interest any citizen could claim, coming in the courthouse and saying, ‘I’m interested in this subject,’ ” Roberts told the Justices. By a vote of five to four, the Justices agreed with Roberts and threw out the case. According to Issacharoff, “Lujan was the first big case that said, Just because you are really devoted to a cause like the environment, that doesn’t mean we are going to let you into the courthouse.”

As a lawyer and now as Chief Justice, Roberts has always supported legal doctrines that serve a gatekeeping function. In DaimlerChrysler v. Cuno, a group of taxpayers in Toledo, Ohio, went to court to challenge local tax breaks that were given to the carmaker to expand its operations in the city; the Supreme Court held that the plaintiffs lacked standing. In a broadly worded opinion that relied in part on the Lujan case, Roberts suggested that most state and local activities were off limits to challenge from taxpayers. “Affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury, ” Roberts wrote, “would interpose the federal courts as virtually continuing monitors of the wisdom and soundness of state fiscal administration, contrary to the more modest role Article III envisions for federal courts.” As usual with Roberts’s jurisprudence, the citizen plaintiffs were out of luck.

2006-2011 archives for The Daily Dish, featuring Andrew Sullivan

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