Chief Justice Roberts on Standing in the Prop 8 Case

by Ed Whelan

Some folks seem to imagine that Chief Justice Roberts signaled on Tuesday that he has grave concerns about whether Prop 8 proponents have standing. Perhaps it will turn out that he does, but I doubt it.

The Chief Justice asked each of the three oral advocates to address standing first. I think that indicates only that the Chief recognizes that the question of standing is a significant threshold issue that needs to be addressed. I don’t think that it shows that the Chief himself holds a particular position on the matter. (To be clear: My guess is that the Chief will recognize that Prop 8 proponents do have standing; my limited point here is that I don’t think that his comments at argument signal his position either way.)

In response to Chuck Cooper’s statement that a state “very well might be able to decide that any citizen could step forward and represent the interests of the State and the people in that State,” the Chief did respond (p. 6):

[A] State can’t authorize anyone to proceed in Federal court, because that would leave the definition under Article III of the Federal Constitution as to who can bring — who has standing to bring claims up to each State. And I don’t think we’ve ever allowed anything like that.  

But as Cooper’s own statement indicates, a Court decision that respects the holding of the California supreme court that the official proponents of an initiative have the authority to assert the state’s interest in the validity of an initiative when the state officials won’t is far removed from a decision that would enable any citizen designated by the state to affirmatively “bring claims” in federal court on behalf of the state. Indeed, the prospect that initiative proponents would have standing in federal court when state law gives them the authority to assert the state’s interest when state officials won’t is exactly what the Court contemplated in Arizonans for Official English v. Arizona (1997).

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