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Monday, June 29, 2015

Standing in the Arizona Redistricting Case: Some Initial Observations

There's much to be said about standing in Arizona State Legislature v. Arizona Independent Redistricting Commission.  The Arizona Legislature, the Court held, had Article III standing to sue to remedy the "deprivation" of "its alleged prerogative to initiate redistricting."  

Justice Ginsburg's standing decision for the Court is an important precedent for "an institutional plaintiff asserting an institutional injury."  Writing in dissent, Justice Scalia would have held that Article III courts have no business deciding "suits between units of government regarding their legitimate powers."  Coleman v. Miller, which seems to the contrary, was, in Justice Scalia's view, "a peculiar case that may well stand for nothing."  

Now that Coleman's peculiar no longer, what's next for institutional standing?  I'll offer some initial observations.  

May Congress sue the President for violating federal law?  We're not deciding that, Justice Ginsburg pointed out as she noted "a suit between Congress and the President would raise separation-of-powers concerns absent here."  In other words, to answer that question we can't look just at Article III. 

What about individual members or a single house of the legislature?  Does, for instance, the House of Representatives have standing to sue the Executive Branch?  That depends on the separation of powers concerns that are unique to suits between the branches.  It also depends upon how much it mattered that, as Justice Ginsburg took pains to point out, "The Arizona Legislature . . . is an institutional plaintiff asserting an institutional injury, and it commenced this action after authorizing votes in both of its chambers." 

What about the states --- can they sue to enforce their sovereign rights against the federal government?  In footnote 10, Justice Ginsburg said that an intersovereign suit "bears little resemblance to this case," but then suggested that cases on state standing are "'hard to reconcile'" and perhaps worth rethinking.

Justice Scalia would have answered "no" to all these questions.  No less an authority than Chief Justice Marshall in Marbury v. Madison, after all, opined that "the job of the courts [is]. . . 'solely, to decide on the rights of individuals.'"  

Seems like it's time to revise the job description.                    




Posted by Seth Davis on June 29, 2015 at 06:18 PM | Permalink



I totally agree. I think Justice Ginsburg's footnote 10 has several purposes, including reminding the reader that the Court's history includes umpiring inter-state and federal-state disputes. There's also other recent examples that would seem to be excluded by Justice Scalia's understanding of Marbury and the original plan, e.g., Arizona v. United States (the "hand me your papers, please" case). We might distinguish some of these cases from the Arizona redistricting case based upon the type of interest at stake, but Marbury's dictum can't be understood as the whole word on the subject. After all, Justice Scalia penned Virginia Office of Protection and Advocacy v. Stewart!

Posted by: Seth Davis | Jun 29, 2015 7:42:37 PM

Justice Scalia seems to have forgotten the original jurisdiction clause, which appears to contemplate federal judicial resolution of claims between government entities: state v. state; US v. state; state v. US. While the framers may have had border disputes in mind, among other things, inter-state and federal-state umpiring seems to have been at least one part of the original plan (whatever the law of England may have had to say on the matter). As for intra-state disputes, not contemplated in the OJC, how about Virginia Office for Protection and Advocacy v. Stewart?

Posted by: Jim Pfander | Jun 29, 2015 7:26:04 PM

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