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Tuesday, February 26, 2013

So much for unanimity

Keep with this week's theme of procedure and jurisdiction, SCOTUS today decided Clapper v. Amnesty Int'l., Inc., holding that a collection of attorneys, journalists, and activists lacked standing to challenge the constitutionality of certain surveillance provisions of the FISA Amendments Act of 2008.

The decision was 5-4 along the expected lines. While I stand by my suggestion that most of the Court's recent jurisdiction decisions have been unanimous or close to it, I should have included standing as the exception. There always has been a strong political/ideological valence to standing, particularly as it affects constitutional litigation. Actually, this is what made the birther lawsuits fun, as well as the ACA litigation if the courts had delved into it--standing doctrine, created in cases with plaintiffs trying to litigate "liberal/progressive" constitutional causes, being used to the disadvantage of plaintiffs trying to litigate "conservative" constitutional causes. It would have been interesting to see how the five-justice majority might have responded in that situation.

Posted by Howard Wasserman on February 26, 2013 at 02:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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Both the decision and the dissent mention a plaintiff claim: that prior to 2008 “the U. S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Al-Hussayen.”

The dissent uses this in its argument that 1) it is reasonable to expect that the plaintiff will be subject to future surveillance and 2) the surveillance would probably use the better new features of 1881a. Therefore, the dissent argues they have standing to challenge 1881a.

The opinion notes that if the plaintiffs were subject to surveillance prior to the passage of 1881a, then the future surveillance could use the same old mechanisms they are not challenging, and they can claim no incremental injury due to 1881a.

Both chains of reasoning seem valid. It is likely that the plaintiff will be subject to surveillance, but it is also likely that this would occur with or without the additional 1881a power although once 1881a is available it is preferred. Accepting both propositions, then the dispute is not, as has been claimed, about what level of likelihood of injury is needed to achieve standing but also, on the flip side, what level of likelihood can be attached to the proposition that the claimed injury is unrelated to the challenged law.

The dissent may have a valid objection that the opinion ignores common sense arguments that establish likelihood of injury, but they then ignore the equally valid common sense arguments that the challenged section has nothing to do with that likelihood. The key may be deciding what elements go into Standing and what elements of the argument have to be considered later on.

Posted by: Howard Gilbert | Feb 27, 2013 12:34:00 PM

Howard: This is just one data point, but weren't the conservatives perfectly happy to find that white voters had standing in the racial gerrymandering cases of the 1990's, against the liberals' argument that the plaintiffs had suffered no harm?

Posted by: Bill Araiza | Feb 27, 2013 10:06:31 AM

"standing doctrine, created in cases with plaintiffs trying to litigate 'liberal/progressive' constitutional causes"

Shouldn't you couch this? Or do you disagree with Sunstein's narrative (which has been supported by empirical analysis)?

Posted by: Standing geek | Feb 26, 2013 3:08:03 PM

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