Tuesday, July 09, 2013

Reflections on "standing"

Sandy Levinson writes Why isn't declining a grant of certiorari sufficient as a "passive virtue": Reflections on "standing" "The Court has managed to liberate itself from almost all mandatory jurisdiction; almost all of their docket is the result of entirely discretionary grants of certiorari.  If they want to duck hard issues, they simply say 'no thank you,' as they've done consistently, say, with the 'state secrets' cases or other cases involving the use of torture by the United States, sometimes as the result of 'rendition' to friendly countries.    So, once the Court is liberated, why bother to maintain what appears to all  many of us, independent of our disagreements on a host of issues, to be an incoherent, basically intellectually corrupt set of cases.  This term alone there were Clapper (no standing of journalists who were clearly 'chilled' by fear of NSA surveillance to challenge an aspect of the national surveillance state); Fisher (standing on the part of someone who had already graduated from LSU who had no conceivable remedy for her injury, assuming one thinks she suffered one, beyond return of her admissions fee, which the University, by all accounts, was willing to give her);  Windsor (standing, even though the Obama Administration in fact was not challenging the rulings below that ruled DOMA unconstitutional), Perry (no standing. even though California Supreme Court ruled that an important way of maintaining the integrity of the initiative-and-referendum system was allowing organizations that successfully prevailed to defend their position against recalcitrant state officials resisting it).  I doubt that anyone disagrees that clever justices and the oh-so-clever clerks could easily have written opinions demonstrating standing in Clapper and Perry and rejecting it in Windsor and Fisher if that’s what the justices wanted to do.  Why continue to going through this charade whose consequence is simply to feed the already fairly widespread contempt of court? "

Of the opinions I've read recently a lot of time is spent on standing, it's a big issue for Roberts and it always strikes me as fairly ridiculous. It is easy to see how both sides of the standing argument can be made for a case, so why bother at all, just decide the case.

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