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Strange bedfellows: The rationale of the Prop 8 dissenters
What Justices Kennedy, Alito, Thomas, and Sotomayor had to say about "standing," and why it matters for voters
An artist's rendering of the Supreme Court justices
An artist's rendering of the Supreme Court justices AP Photo/Dana Verkouteren
W

hile the Supreme Court's decision to essentially pass on Prop 8 has been widely heralded as a victory for gay rights, there's one detail that's been (largely) ignored: The dissent.

On Twitter, Slate's Dave Weigel points out that, unlike the court's decision to strike down DOMA, the split in Hollingsworth v. Perry bucked the court's usual ideological lines:

But this shouldn't necessarily be a surprise.

After all, one of the key questions in the Hollingsworth case was whether the plaintiffs had "standing" — or a right to challenge the lower court's decision under the law — after state officials in California declined to appeal the district courts' decision.

PolicyMic's Jordan Fraade explains:

The logic is that in order to sue over a law, you must show the law has harmed you in a demonstrable way. A District Court in California ruled that Prop 8 was illegal, and if California had then appealed in order to defend its own law, it's pretty clear the state would have standing. But the state government declined to defend Prop 8, meaning a group of random conservative lawyers got together and decided to do it. [PolicyMic]

In its majority opinion, the court, led by Chief Justice John Roberts, ultimately concluded that the petitioners did not have standing, writing: "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."

That's still a victory (albeit, a limited one) for same-sex marriage supporters, since it leaves the lower district court's ruling (invalidating Prop 8) intact. But it's not as sweeping a victory as it could've been had the court, say, granted standing and actually decided the case's merits.

And for an unusual lineup of justices, that's exactly what they should have done — although not for reasons that have anything to do with gay marriage.

For court watchers who paid attention to oral arguments in April, the list of dissenting justices — Kennedy, Thomas, Alito, and Sotomayor — is not a huge surprise. Thomas, of course, didn't say anything (he hasn't asked a question during oral arguments since 2006). But Kenendy, Alito, and Sotomayor each peppered Ted Olson (the lawyer challenging Prop 8, who argued that same-sex marriage opponents should not have the right to defend the law in lieu of the government) with hard questions about the implications of denying standing.

Here's Kennedy:

If we were to accept your argument, it would give the State a one-way ratchet. The State could go in and make a defense, maybe a half-hearted defense of the statute, and — and then when the statute is held invalid, simply — simply leave. On the other hand, if — if the State loses, the State can appeal. So this is a one-way ratchet as it favors the State, and allows governors and other constitutional officers in different States to thwart the initiative process.

And Alito:

Well, Mr. Olson, is it your position that the only people who could defend a ballot, a law that's adopted in California through the ballot initiative are the Attorney General and the governor, so that if the Attorney General and the governor don't like the ballot initiative, it will go undefended? Is that your position?

Alito, again:

In a State that has initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials. The whole point — you know this better than I do, because you're from California — the whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious.

So if you reject that proposition, what is left is the proposition that the State — State law can choose some other person, some other group to defend the constitutionality of a State law. And the California Supreme Court has told us that the Plaintiffs in this case are precisely those people.

So how do you get around that?

And finally, Sotomayor:

Mr. Olson, I think that you're not answering the fundamental fear. And so — and — and the amici brief that sets forth this test of fiduciary duty doesn't quite either. The assumption is that there are not executive officials who want to defend the law. They don't like it. No one's going to do that. So how do you get the law defended in that situation?

The three justices' questions anticipated their dissent today, which made an impassioned argument for why the court should have granted standing and considered the Hollingsworth case further.

Led by Kennedy, the dissenters argue that their colleagues failed to "take into account the fundamental principles or the principle dynamics of the initiative system."

Particularly worrisome to the dissenters is that by denying standing, the court effectively undermined the ballot initiative system — and not just in California, but in "the 26 other States that permit initiatives and popular referendums." "The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials," Kennedy writes.

Let's look at how this might play out.

Imagine, for instance, that California experiences a sudden and dramatic spike in air pollution. State legislators and the governor — who, let's say, receive a ton of campaign contributions from the auto industry — won't pass a bill to limit vehicle emissions, so voters decide to put it on the ballot instead. It passes with clear and overwhelming support. The auto industry challenges the law in federal district court and wins, but state officials decline to appeal the ruling.

Under Hollingsworth, that leaves nobody able to pick up the baton and defend the vehicle emissions law. A measure that was overwhelmingly supported by voters and democratically passed is left dead in the water (and Californians are left to continue choking to death on smog), because the law's opponents had the resources and influence to kill it.

According to Governing's Dylan Scott, one Duke University professor says the Hollingsworth decision "could be a huge problem." Eric Veram, who covers ballot initiatives for Ballotpedia, told Scott it "could be something to watch for." But Lisa Soronen, executive director of the State Legal Law Center, says it would probably be a rare situation. And Suzanne Goldberg, a law professor at Columbia University, said on SCOTUSblog that letting private citizens assume the government's role "would have created enormous political problems."

Supporters of gay marriage are unlikely to focus on this aspect of the case, since the majority's decision to steer clear of a broad, sweeping ruling is still a victory for them (and there's no guarantee that the court would have sided with them if it had considered the case).

But as Kevin Drum points out at Mother Jones, while this decision may have yielded many Americans' preferred outcome in this individual case, it "is basically gutting the people's right to pass initiatives that elected officials don't like and then to defend them all the way to the highest court in the land." It has, Drum writes, "neither the flavor of justice nor of democratic governance."

Of course, the court often draws criticism for avoiding controversial issues — either by ruling in the narrowest possible way, or avoiding the merits of a case altogether when it can. Some think this is especially true when it comes to high-profile cases that involve polarizing social issues. (Justice Ginsburg, for example, has often been described as critical of Roe v. Wade; in the past, she has indicated that the court should avoid getting too far ahead of public opinion, lest it trigger a harsh public backlash).

The Hollingsworth dissenters seem to acknowledge this, but point out that setting bad precedents (like disenfranchising voters or nullifying ballot initiatives) to avoiding controversial subjects is a cowardly move:

Of course, the Court must be cautious before entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject. As the California Supreme Court recognized, "the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter." 52 Cal. 4th, at 1124, 265 P. 3d, at 1005 (emphasis in original). If a federal court must rule on a constitutional point that either confirms or rejects the will of the people expressed in an initiative, that is when it is most necessary, not least necessary, to insist on rules that ensure the most committed and vigorous adversary arguments to inform the rulings of the courts.

Sergio Hernandez is business editor of The Week's print edition. He has previously worked for The DailyProPublica, the Village Voice, and Gawker.

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