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Wednesday, June 26, 2013

Initial Hollingsworth question

Many people are going to be talking about the line-up in Hollingsworth: The Chief was joined by Scalia, Ginsburg, Breyer, and Kagan in saying no standing. Justice Kennedy, joined by Thomas, Alito, and Sotomayor, argued the proponents had standing, although without subsequently discussing the merits, which seems highly unusual. (Does anyone know how often that happens, that in a case dismissed on jurisdictional grounds, the dissent will insist there is jurisdiction, but then not reach the merits?)

Update: Some readers suggested past standing cases to look at and it appears that it is common practice for the dissenters not to reach the merits, even if they would have found standing. One exception is Justice Stevens' dissent in Raines v. Byrd, although he announced his view of the merits in one sentence that largely tied the merits to standing. In a separate dissent in that case, Justice Breyer espressly declined to discuss the merits because the majority had not discussed the merits and he chose to "reserve" his views for future argument. I still believe there is a nice normative question of whether that is how dissenters should approach cases, but I will reserve that for future days.

So what happened internally? Assuming that Ginsburg, Breyer, Sotomayor, and Kagan all would find marriage equality required by the Fourteenth Amendment and since Kennedy agreed there was standing, why wouldn't those five join to invalidate Prop 8 on the merits? Was Kennedy not willing or ready to go along? Could they not agree on a rationale? Am I falling into the trap of making every justice results-oriented and not giving Ginsburg, Breyer, and Kagan credit for genuinely being troubled by the Article III concerns?

Posted by Howard Wasserman on June 26, 2013 at 10:51 AM in Howard Wasserman, Law and Politics | Permalink


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Is it possible they voted on jurisdiction before voting on -- or maybe even instead of voting on -- the merits?

Posted by: William Baude | Jun 26, 2013 11:14:42 AM

But shouldn't they at least vote on the merits, since it was presented to the Court? They need not resolve them in the opinion, if there is a majority finding no jurisdiction. But think about the logic of the dissent--"We have jurisdiction over the case." And . . . . ?

Posted by: Howard Wasserman | Jun 26, 2013 11:20:51 AM

I'm not sure there's any requirement that people who would have voted to decide a case are under an obligation to decide or announce how they would have decided it. (Think of dissents from denial of cert., which frequently do not announce the Justice's vote on the question presented.)

In any event, this dissent *doesn't* go on to address the merits, so even if they "should" have voted on it, maybe they didn't. And for what it's worth, I think there's something nice about deciding jurisdictional questions behind a veil of ignorance.

Posted by: William Baude | Jun 26, 2013 11:33:34 AM

I don't know, Will. Based on my experience there, I suspect they just went down the line in the normal way, voting to affirm/reverse/vacate. CJR says no jurisdiction and thus vacate, so maybe *he* says nothing on the merits, and same for AS. But you get to AMK, and he says he thinks there is jurisdiction and therefore votes to reverse (or affirm) on the merits.

I also think that people in the building would have been very interested in, and would certainly have known, AMK's views on the merits by the morning that conference rolled along. So your ideal, while nice, doesn't seem likely to match reality.

Do you disagree?

Posted by: anon | Jun 26, 2013 12:11:32 PM

I assume Roberts and Scalia were genuinely concerned about standing (they were the only consistent pair finding no standing in either case; Alito and Kennedy found standing in both). I assume Ginsburg, based upon some of her comments about Roe v. Wade, may have been reluctant to address the merits. I assume Breyer may have had some misgivings based on his minimalism. And I then am just speculating that Kagan has some sympathies all around, both with standing and with minimalism.

Posted by: anon | Jun 26, 2013 12:32:14 PM

I suspect that Kagan, as a former Solicitor General, had some sympathy for the idea that John Q Public shouldn't have standing to defend laws when an executive decline. I'd see the California AG's brief as being important in that case.

Posted by: Brett | Jun 26, 2013 9:12:04 PM

I've just heard on KCRW's To The Point that Ginsburg authored the Court's most recent and directly relevant opinion on non-governmental third-party constitutional defenses of statutes (16 years ago; I didn't hear the name of the case), and she came down against standing in such cases. If that guided her vote, that would seem to resolve the seeming strangeness of there appearing to be five substantive votes to declare laws (and state constitutional provisions) like Prop 8 invalid, but no majority willing to overcome the standing issue in this case. Justice Ginsburg was simply too tightly staked to an opinion of record while on the Court to the opposite effect of what she'd have had to hold to reach the merits here.

Posted by: Michael Drew | Jun 27, 2013 1:47:02 AM

...Beyond that, of course, it's possible that any of the other justices were truly committed to their view of the standing question on its own merits and significance as well. I have no idea.

Posted by: Michael Drew | Jun 27, 2013 1:50:47 AM

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