SCOTUS: The Amicus Brief That Got It Right; Standing in Proposition 8 (Hollingsworth v. Perry)

On the last week of the Supreme Court's 2012 term, the Court ruled that the petitioners for Proposition 8 in Hollingsworth v. Perry (No. 12-144) --an initiative passed by Californians (in 2008) to amend the Californian constitution to define and limit marriage to that of only a man and a woman-- lacked Article III standing to bring forth the case before the Court. It was a 5-4 decision, written by Roberts, joined by Scalia, Ginsburg, Breyer, and Kagan. Justices Kennedy, Sotomayor, Alito, and Thomas dissented. 

According to the majority's opinion, the petitioners (ProtectMarriage.com; the private "non-profit" entity defending Prop. 8 in the courts since the State of California had chosen not to appeal) not only had no jurisdictional standing before the Supreme Court, but had no standing when it came to appealing the district court's decision to the Ninth Circuit Court of Appeals (COA). For that reason, the Court never got to the merits of the case, and vacated and remanded the case in favor of the respondents. 

The majority's opinion aligns perfectly with the brief submitted by Walter E. Dellinger III where he wrote "in support of [the] respondents on the issue of standing." He writes, 

"The proponents did not have Article III standing to appeal from the district court's judgment holding Proposition 8 unconstitutional because they have only a generalized interest in the enforcement of that law, and the Court has repeatedly held that such an interest is not sufficient to establish a case or controversy [italicized only for emphasis] under Article III. The Court should therefore vacate the court of appeals' judgment and remand with directions to dismiss the proponents' appeal." (Dellinger's amicus brief, p. 2-3.)

The five "arguments" addressed in the brief are: [taken from the brief] 

1. The proponents' generalize interest in enforcement of proposition 8 is not sufficient to give them Article III standing
2. A state cannot confer standing by denominating a private party's generalized interest as the state's interest 
3. Agents of the state can represent the state's interests, but proponents are not agents of the state
4. The state can ensure defense of its initiative without putting it in the hands of private parties who have nothing more than a generalized interest in a law's enforcement
5. The COA's judgment should be vacated, but the district court's judgment should be allowed to stand
1. Because the proponents did not have standing to appeal to the Ninth Circuit, th Court should vacate the judgment of the court of appeals. 
2. In the past, when the Court has dismissed for lack of standing in appeal, it has left intact the judgment of the last court in which there was a case or controversy. See Diamond, 476 U.S. at 71; Karcher, 484 U.S. at 83. 
3. The proponents argue that the district court issued an injuction that exceeded its remedial authority because it ordered a statewide injunction against the enforcement of Proposition 8, rather than limiting the scope of the injunction to the named plaintiffs. Such arguments may be open to future litigants WITH Article III standing. But because no party with standing appealed the district court's judgment, issues relating to the district court's injunction and the scope of the court's remedial authority are not properly before the Court. 

For the following reasons presented in the brief, a majority of the Court found the brief persuasive in the petitioner's lack of standing. As Justice Roberts wrote for the majority, 

"We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here. Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction."

PAPER IN PROGRESS. (As of July 8.)