Bench Memos

Falling on Standing on Prop 8?

If the Supreme Court were to hold that Prop 8 proponents lack standing to defend Prop 8, the two rulings against Prop 8 below—Judge Reinhardt’s ruling for the Ninth Circuit and then-Judge Vaughn Walker’s district-court ruling—should both be vacated. So explains law professor (and former Blackmun clerk) Vikram David Amar, cogently elaborating the position that he has previously taken (and that I have also raised). As Amar puts it:

To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask: If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

Instead, Amar explains, the four named plaintiffs would then have the option to “seek and obtain a victory through a device known as a ‘default judgment.’”

Amar also sets forth his “reason for doubting [Prop 8 proponents’] standing”:

when voters in California passed Proposition 8 in 2008, they could not have in any way be said to have knowingly appointed the sponsors as their agents to represent the State in the event that the Attorney General and Governor fail (as they did, in fact, fail) to defend the enactment if and when it was challenged in federal court.

But (as I have explained in spelling out why Prop 8 proponents have standing) the California supreme court, as the authoritative interpreter of state law, has opined that “it is essential to the integrity of the initiative process” that “the official proponents of an initiative (in light of their unique relationship to the initiative measure under [California law])” be able to “assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so.” To be sure, it said so in those terms only after Prop 8 was enacted. But it was relying on established principles and was certainly not purporting to change what state law had been. So I don’t see on what basis the U.S. Supreme Court could find that voters in California, by adopting Prop 8, hadn’t selected Prop 8 proponents to assert the state’s interest in Prop 8 in the event that state officials declined to do so. (In an earlier and fuller account of his position, Amar calls for the federal courts to have standing turn on whether “the conferral of power to defend on proponents is clearly provided for in state law” (emphasis in original). That standard, even if it were workable, strikes me as illegitimate: what federal basis is there for micromanaging state law on this matter?)

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