The Passive Virtues

One question that I have after last week is why the Court did not dismiss Perry as improvidently granted.  I understand that some of the Justices did not want to rule on the merits of Proposition 8 for different strategic reasons, but their method of avoidance was flawed.  The holding on standing will eventually return to cause mischief when another state government (or perhaps California under a Republican Governor) decides that it does not want to defend the constitutionality of a referendum or initiative that they do not agree with.  Hard cases make bad law indeed.


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9 Responses

  1. You’re assuming the justices didn’t think about that. If you look at this from the other side – the consistent narrowing of standing that has been taking place over the years, this might well have been the desired outcome for some of them, whereas a DIG (and thus the 9th Cir. opinion standing) was definitely NOT.

  2. Joe says:

    I take it that you didn’t find the alternatives suggested by the Dellinger brief convincing. Anyway, the ‘mischief’ would only arise if no other suitable parties with standing arose. Even here, there very well might be ones that were available, such as a business that is required to provide “marriage” benefits, especially now that DOMA, sec. 3 was struck down.

  3. Gerard Magliocca says:

    Michael–I know that they thought about that. I just think that at least some of them made the wrong call.

    Joe–Maybe somebody would have standing. It would depend on what the referendum was about. But I’m not confident.

  4. Hideous says:

    I realize you like to snark at those nasty Republicans, but you might be interested to know that a previous California people’s legislative initiative statute was negated in 1998 by California officials who colluded with a nominal plaintiff to obtain a Federal court ruling throwing out the statute. The officials refused to appeal, instead getting the judge to bless a “settlement” canceling all but a trivial portion of the statute. The initiative was Proposition 187 (enacted by a 59% to 41% vote in 1994 but prevented by court orders from ever taking effect), and the Governor who negated it was Democrat Gray Davis.

    It’s true that Republican gubernatorial candidate Dan Lungren, then attorney general, helped frustrate the initiative by stalling the case for months until Davis took office (after beating Lungren at the polls), but it’s not clear whether Lungren actively wished to negate the statute or just wanted the case pending to provide an open controversy for him to campaign on.

    Davis’ contempt for the voters helped get him recalled (!) and replaced with Arnold Schwartzenegger but of course Prop. 187 was already dead.


  5. Howard Wasserman says:

    I agree that the standing ruling is a bad one, although I think states with initiative processes can create a very simple workaround by providing for formal appointment in the event state officials refuse to defend.

    On the question of why not DIG, we may not know until we can read more about the inner workings of the justices. There long has been a practice (I don’t believe it’s a formal rule) that the Court will not DIG a case unless at least one of the justices who voted to grant cert. also votes to DIG. Maybe they did not have the necessary line-up.

  6. Marty Lederman says:

    A combination of what Michael and Howard said, as I surmised here:

    AMK and others are generally opposed to a DIG by the five who voted not to grant (bad institutional precedent); and, in addition, it would mean that Reinhardt’s opinion would be precedent in the CTA9. The latter might not be such a big deal, since that opinion was by its terms limited to California and would not affect the forthcoming Nevada and Hawaii cases. Even so, I imagine there were some Justices not keen on letting it stand.

  7. anon says:

    You’ve got the DIG practice wrong, as it changes before and after argument.

  8. Ken Rhodes says:

    Howard–You are correct that they needed at least one of the justices who voted to grant cert to change his/her position. There’s an article on that subject in the Wisconsin Law Review in 2005. The title is:
    “The Supreme Court and the DIG:
    An Empirical and Institutional Analysis”

    The link to the abstract on SSRN is:

    The key paragraph in the abstract states “The conventional though not universally accepted response is that to support the Rule of Four, at least six votes should be necessary to DIG a case. Support for this position on the Court is strong though not absolute, and the article explores why the Rule of Six for DIGs has enjoyed robust if not ironclad support.

  9. prometheefeu says:

    First, isn’t the fact that their officials are not defending initiatives a problem internal to California in which the Federal government has no interest? That could be remedied by CA allowing proponents to sue in order to compel the State’s AG to defend the initiative.

    Alternatively, CA could actually delegate the proposition proponents for the purposes of that litigation and let them act in the name of the state.