June 26, 2013

Should respect for the initiative process have moved the Supreme Court to stretch the restraints of the standing requirement?

Chief Justice Roberts, writing for the Supreme Court majority in Hollingsworth v. Perry, says:
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.
There was some argument that there needed to be a way for the results of the state's initiative process to be defended when the state's elected officials didn't like those results, as happened with Prop 8. The dissenting opinion said the majority "disrespects and disparages" this political safeguard that is part of California law. The Chief's answer was the state can have its law, but it doesn't have power to change the federal law of standing that limits federal courts.
[T]he fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary.

The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers.
In other words, separation of powers beats federalism. Not always, but here, where the separation of powers is a matter of federal constitutional law, and the federalism interests are only policy concerns.

The dissenting opinion is written by Justice Kennedy and joined by Justices Thomas, Alito, and Sotomayor:
The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement “the theory that all power of government ultimately resides in the people.”...

The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. 
Roberts's opinion acknowledges all that, but it's simply policy analysis, and federal standing doctrine has — for a long time — rejected arguments that come in the form of if these plaintiffs can't sue, an important legal issue cannot be raised.

I'm particularly unsympathetic to this argument in the context of needing to defend the results of the initiative process. Long ago, the Supreme Court had a case challenging the initiative process as a violation of the Article IV guarantee of a "Republican Form of Government" to every state. In that case, Pacific States Telephone & Telegraph v. Oregon (1911), the Court said it could not reach the substantive merits of the question because of the so-called "political question" doctrine — which, like standing, is a justiciability doctrine about the power of the federal courts.

It would be ironic if reverence for the initiative leveraged these plaintiffs past the normal limits on judicial power, since it was a limit on judicial power that prevented us from ever finding out whether lawmaking by initiative — rather than in a deliberative body of elected representatives — is unconstitutional.

Justice Kennedy ends his dissenting opinion saying:
The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. 
That's interesting political philosophy about democracy, but the people also made the federal Constitution, which is superior to state law, and which has that guarantee of a republican form of government. So let's not get too sentimental about direct democracy. If we want to get back to first principles, let's talk about republicanism.

(Here's Erwin Chemerinsky's article "Why Cases Under the Guarantee Clause Should Be Justiciable," which was part of a symposium at the University of Colorado Law School in 1994, back when there was a challenge to an initiative in Colorado that barred laws protecting gay people from discrimination. I was there too and wrote a response to Prof. Chemerinsky — here's my "Time for the Federal Courts to Enforce the Guarantee Clause?" — saying that if the Supreme Court felt motivated enough about this challenge, before it would change the justiability law about the Guarantee Clause, it would find the right it needed in the Equal Protection Clause. And that, by the way, is exactly what the Court proceeded to do, in Romer v. Evans — a case written by, of all people, Justice Kennedy.)

90 comments:

traditionalguy said...

OK, I get it. Laws of equal protection are fine and good, but some laws are more equal than others, such as those laws that affect the Court's preference in the outcome of a case.

Bryan C said...

If such an initiative cannot be defended in a federal court then perhaps it should not be permitted to be challenged in federal court.

That is, if the state is not willing to defend the results, the results stand.

Revenant said...

I don't really buy this argument.

Massachusetts and other states brought suit against the EPA to force it to regulate CO2 emissions. None of those states could demonstrate that they were being harmed by CO2 emissions or by the EPA's failure to regulate them, but their suit was allowed to proceed.

Where was Kennedy's principled devotion to standing doctrine then?

gutless said...

So in other words, shut up.

edutcher said...

When convenient, consistency is the hobgoblin of small minds.

paul a'barge said...

Roberts.

George W Bush's gift / infection to the American people.

Unbelievable. Simply unbelievable.

Can this man do no right?

bpm4532 said...

I guess you can petition the government for redress of grievances, but no the court system.

Unless you are in a special protected class.

bpm4532 said...

Shouldn't a state be REQUIRED to defend a state law in court?

Ignorance is Bliss said...

Professor-

Can you explain what a republican form of government is? You include a link to republicanism, but what is described there is not a form of government.

Ed Fallone has a post explaining what this clause means, and say that it would not prevent ballot initiatives.

I'd like to hear your take.

Jay said...

DOMA = standing

Prop 8 = no standing

So shut up.

Rabel said...

If the Walker recall had been successful and the Walker administration had refused to enforce the results of the recall, then the citizens of Wisconsin would not have had standing in federal court to contest the failure to enforce those results.

Right?

Kevin said...

I, for one, am happy that the supreme court is now on record declaring that the voters are merely "concerned bystanders" in the American government. I used to feel an obligation to educate myself about the issues and vote, which took a lot of time and effort. Now I know that I need not bother and can just leave political questions up to the lawyers and judges who actually get to decide things.

Dante said...

From the link on republicanism:

Revolutionaries took a lesson from ancient Rome, they knew it was necessary to avoid the luxury that had destroyed the Empire.[15] A virtuous citizen was one that ignored monetary compensation and made a commitment to resist and eradicate corruption. The Republic was sacred;

How prophetic. The Tea Party embodies the "virtuous citizenry" trying to keep the country from living within its means.

It's interesting to consider the government tried to shut them down.

Nathan Alexander said...

Another thing that bothers me about "standing".

The Left is based around manufacturing grievances. They bring these grievances to the court, and because their feelings are hurt, the court finds they have standing.

If someone opposes this grievance-mongering, they can't prove that anyone is hurt...their hurt feelings or worries are pre-packaged by the media as bigotry or small-mindedness. So even though they may have the exact same feeling of distress as the Professional Grievance Group on the Left, they are just about automatically denied standing.

The way that Progressive Thought has become the default is how things like the IRS scandal occurred. Ostensibly well-meaning, apparently non-partisan workers look at applications that were flagged for either having "Tea Party" or "Progress" in their name, but the "Progress" ones get rubber stamped because 'progress' is in the public interest, but the ones that teach the US Constitution are sent to a Terrorism Task Force because they might stir up public ire against the govt.

This is starting to get silly.

Tank said...

Have I ever said that voting is overrated?

Yes I have.

You voted, we don't care, now shut up. Big gov't. Here it is.

David said...

The federal courts are not the deciders of everything. Standing simply keeps the federal courts out of issues they were not empowered to decide.

There is a remedy when state officials decide not to defend a referendum initiative. Vote those officials out and vote in people who will defend the law. It's not immediate, which may be annoying, but it is a remedy.

Ignorance is Bliss said...

Would the same issue of standing happen if a law was passed by the legislature, overridding the executive's veto? If that law was ruled unconstitutional, and the executive chose not to appeal, would the legislature have standing to appeal?

Nathan Alexander said...

Another thought:
Martin Luther's arguably greatest contribution to human society in general was to translate the Bible into the vernacular, so that every person could read the Bible for himself and decide what it meant.

Prior to that, the common man relied on the educated, and particular the anointed Priesthood to interpret the Bible; the Catholic Church of that time had made some pretty egregious lies in order to keep the common man in line.

Now, the Left says that the US Constitution doesn't mean what it says in plain English, and only the Ivy League Educated, and particularly the Anointed Protected Class Priesthood can interpret it and tell the common person what it means.

Expect further egregious lies that are intended to further the Liberal Cause.

dwstaple said...

Couldn't a state enact a law, perhaps by referendum, requiring the governor or attorney general to defend state laws in court challenges and appeals? It strikes me as being part of the duty of their office. Perhaps it is those officials who fail the people when they choose not to defend the laws of the state, not the federal courts for being unwilling to bend the constitutional requirements.

Ignorance is Bliss said...

David said...

The federal courts are not the deciders of everything. Standing simply keeps the federal courts out of issues they were not empowered to decide.

That's a reasonable principle that does not apply in this case. The federal courts were already involved in that it was a federal court that overturned Prop 8.

Laurel Lowrey said...

I told you already, laws don't enforce themselves. If ultimate authority rests in the hands of the citizenry, but you don't have standing, what have we learned? THE LAW IS WHAT A BARE MAJORITY SAYS IT IS. The right and honorable thing would have been for the 4 dissenting justices to resign. If the citizens have become subjects, return to your plow, Cincinnatus.

Dante said...

On "Republican form of government":

Article 4, section 4:

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

What does this section have to do with how a state is organized politically? It seems to me it is describing Federal protections, not not the way in which a state is organized.

Basil said...

Yes. Otherwise, elected officials in state government can simply not fight on behalf of a law that passed by even a huge majority of voters. Oligarchy/plutocracy at its finest.

Lem said...

... moved the Supreme Court to stretch the restraints of the standing requirement.

I know there were rumors about Kagan's private life... but little did I know she would be making such an impact so soon.

El Pollo Raylan said...

dwstaple said...
Couldn't a state enact a law, perhaps by referendum, requiring the governor or attorney general to defend state laws in court challenges and appeals? It strikes me as being part of the duty of their office. Perhaps it is those officials who fail the people when they choose not to defend the laws of the state, not the federal courts for being unwilling to bend the constitutional requirements.

It seems that the Prop 8 outcome is just another species of a generic new practice wherein a governing authority decides not to enforce a new or existing law. A higher court looks at it, concludes that that nobody's rights were being harmed because the law wasn't being enforced against them. End of story.

The practice encourages governments and law enforcement to flout the will of the majority for law making practices. Someone should name the practice as a verb to distinguish it from "standing." I suggest "browning" or "holdering."

Lem said...

There goes Rabel making sense again...

Don't you just hate when that happens?

Rabel said...

The Zimmerman judge has sent out an emergency request to have Barbara Billingsley brought into the courtroom. Unfortunately she's dead.

This is on topic because it relates to judicial authority and protected groups.

DADvocate said...
This comment has been removed by the author.
El Pollo Raylan said...

I suggest "browning" or "holdering."

Or perhaps "Jerrymandating."

Lem said...

This is on topic because it relates to judicial authority and protected groups.

And Althouse not opening a café all day.

Skyler said...

Seems to me that any future initiative needs to also have language to grant standing to anyone wishing to enforce it.

Zeb Quinn said...

...violation of the Article IV guarantee of a "Republican Form of Government"to every state. In that case, Pacific States Telephone & Telegraph v. Oregon (1911), the Court said it could not reach the substantive merits...

One thing that has been a consistent theme in US political history has been an aversion towards direct democracy on the federal level. That the Court disrespects the initiative process and results is nothing new.

Amartel said...

See, Alito's Dissent in Perry, fn. 7, for more re: "an arrogant legal culture that has lost all appreciation of its own limitations."

Anthony said...

The other solution is for Congress to pass a law allowing initiative proponents to have standing to defend their initiatives in Federal Court. Because contrary to Scalia, they have been "elected" - their initiative received a majority of the votes. Proponents of unsuccessful initiatives don't have standing, because there's nothing to defend.

edutcher said...

Kevin said...

I, for one, am happy that the supreme court is now on record declaring that the voters are merely "concerned bystanders" in the American government.

When, in the course of human events...

Tank said...

Have I ever said that voting is overrated?

Yes I have.

You voted, we don't care, now shut up. Big gov't. Here it is.


You don't vote, you lose the right to whine.

Ann Althouse said...

"Can you explain what a republican form of government is? You include a link to republicanism, but what is described there is not a form of government."

The Supreme Court has said that it's a political question in part because of the lack of judicially manageable standards, so it's built into the doctrine that it would be really hard to say what a RFG is and isn't. It would be hard to draw the line in particular cases.

Many people argued that malapportioned legislative districts, with radically different populations crossed the line. But the Court said that couldn't be decided.

I think the initiative violates the guarantee, because you don't have a legislative body deliberating and voting together, with room for debate and amendment. You just have a lot of voters, in solitary fashion, going to voting booths, and the language is fixed, often in a terribly written and ambiguous way.

Revenant said...

You don't vote, you lose the right to whine.

That's a moronic, but common, belief.

Ann Althouse said...

The Pacific States case is worth reading. The company made an argument that seems weird to us today: That letting the majority gang up on it and subject it to a big tax wasn't an acceptable way to make law. The company deserve to be able to lobby the legislators in the good old way. This was a distortion of the process, too majoritarian and lacking in safeguards.

dwstaple said...

I'm only an amateur constitutional scholar, but I don't believe Congress or a state referendum could bestow standing upon someone. Even if a state of federal law said they had standing, they would still fail to meet the constitutional requirements.

To paraphrase Seinfeld, "not many people have [standing]... You can't have a little [standing]... You either have [standing] or you don't... and you can't acquire [standing]."

eric said...

Ok, so Prop 8 was passed and voted on by the citizens of California to amend their constitution.

I assume this has now been thrown out because a lower court found standing with the Governator and ruled against Prop 8, and the Supreme Court has decided there is no standing, so it goes back to the lower court?

Would I then have standing if I lose my business in California as a direct result of Prop 8 being overturned?

Suppose I am a Christian business owner and I refuse to give married benefits to a gay man who works for me, but I give it to all the other married men who work for me. Therefore, I get prosecuted under the law because his marriage is equally valid.

At the point that I am harmed, do I now have standing?

edutcher said...

Revenant said...

You don't vote, you lose the right to whine.

That's a moronic, but common, belief.


No, it's a fact.

You have the chance to affect the outcome and you don't want to take it, your take away your right to complain about the outcome.

That, and I can't abide a whiner.

But I understand why Rev doesn't want that idea to stand.

Sophistry, moronic as it often is, is his life.

Julie C said...

Well, here's the problem (not a legal one just a practical one). The initiative process is the only thing keeping California's legislators from fully implementing their vision of a complete socialist paradise. The lefties here have been agitating about Prop 13 for decades. Now the camel's nose is under the tent and the Roberts court is helping lift up the drapes.

We're fucked, frankly. They won't stop until they've tripled property taxes.

BTW, I'm cool with gay marriage. My concerns having nothing to do with that.

Jay said...

Yes, the people of California get no hearing because some faggot judge decides the law they passed violates his policy preferences.

Revenant said...

No, it's a fact.

You have the chance to affect the outcome and you don't want to take it, your take away your right to complain about the outcome.

Your opinion about what rights people do or don't have is not a fact. You can Google what the word "fact" means, if you like.

Now, here is an actual fact: no vote you have ever cast in any state or federal election has ever had a chance of affecting the outcome. Your belief that your vote matters is purely delusional. In theory only the deciding vote matters, and you've never cast one. In practice, not even the deciding vote matters -- if the election's that close, it all comes down to which party has the better lawyers and the most judges.

So your babbling about how your exercise in electoral masturbation somehow grants you special rights is nothing but amusing to me. :)

I would take a slightly different view: nobody who supports the Republican or Democratic parties has a right to complain. The mess we're in is your fault.

bagoh20 said...

I understand the drawbacks of a pure democracy, but there is just no way around the fact that once you move to representatives, you are leaving questions that affect everyone up to a very small group of people like a legislature. Then the argument there is that they are elected by the people, except that a very small percentage of the people voted for those representatives - far less than half.

When questions go to the courts, it's really just an oligarchy.

We should be avoiding that rather than depending on it more and more, because the people in that group are not at all diverse nor representative of the population either electorally or in reality. They decide for us, but they don't know us, and a lot of them don't even like us.

Cheers,
Bagoho20 - spokesman for Hoi polloi.

Larry J said...

Kevin said...
I, for one, am happy that the supreme court is now on record declaring that the voters are merely "concerned bystanders" in the American government. I used to feel an obligation to educate myself about the issues and vote, which took a lot of time and effort. Now I know that I need not bother and can just leave political questions up to the lawyers and judges who actually get to decide things.


For years, we've been told that only about half the people eligible to vote actually vote. More and more, it seems there is no point in voting. No matter who wins, the bureaucracy grows more powerful, spending increases and the tyrants in black robes dictate over us all. The Constitution only means what judges say it means. Elections only stand if judges allow them to stand.

For the first time in my life, I'm wondering why I should bother to vote. Perhaps that's the whole point of all this. If you discourage enough people from voting, then those who bother to show up will win. Those who suck on the government tit have the most incentive to vote for more of the same while the country spirals down the drain.

edutcher said...

Revenant said...

No, it's a fact.

You have the chance to affect the outcome and you don't want to take it, your take away your right to complain about the outcome.


Your opinion about what rights people do or don't have is not a fact. You can Google what the word "fact" means, if you like.

Now, here is an actual fact: no vote you have ever cast in any state or federal election has ever had a chance of affecting the outcome. Your belief that your vote matters is purely delusional. In theory only the deciding vote matters, and you've never cast one. In practice, not even the deciding vote matters -- if the election's that close, it all comes down to which party has the better lawyers and the most judges.

So your babbling about how your exercise in electoral masturbation somehow grants you special rights is nothing but amusing to me. :)


Blah, blah, no vote affects anything.

A little evidence for all this nonsense?

No? A very convenient excuse to sit back, do nothing, and complain.

Just blather.

You're starting to sound like Ritmo.

Always a bad sign.

PS A plague on you all; I stand above it.

This was the song of the "intellectual" Germans who looked down their noses at the Nazis, even as they did their dirty work, or stood by knowing what was going on.

Bryan C said...

"Well, here's the problem (not a legal one just a practical one). The initiative process is the only thing keeping California's legislators from fully implementing their vision of a complete socialist paradise."

As a practical matter that's true. But these legislators didn't drop from the sky and assume office. They were voted in, often repeatedly. When people insist on voting against their own interests for years on end then this is what happens.

Julie C said...

And of course yesterday Obama announces to great fanfare that he will use the power of the EPA to put the coal industry out of business.

Did you happen to see the WSJ article a couple weeks ago about all the money flocking to Washington DC? Sort of a Gilded Age kind of thing?

I realize I'm about to mention lowbrow fiction, but this country is beginning to resemble the Hunger Games. Those of us out here in the provinces are toiling away to make sure the anointed ones in Capital City can continue to live lives of complete comfort.

El Pollo Raylan said...

revmo wrote: Now, here is an actual fact: no vote you have ever cast in any state or federal election has ever had a chance of affecting the outcome. Your belief that your vote matters is purely delusional. In theory only the deciding vote matters, and you've never cast one. In practice, not even the deciding vote matters -- if the election's that close, it all comes down to which party has the better lawyers and the most judges.

revenant should teach civics to young people. What an inspiration! :p

Left Bank of the Charles said...

California voters could repass Proposition 8 with a special counsel provision ensuring the voters views are represented.

The bet is they won't.

Bryan C said...

"Now, here is an actual fact: no vote you have ever cast in any state or federal election has ever had a chance of affecting the outcome. Your belief that your vote matters is purely delusional. "

That's probably the least logical thing I've read all day.

Dante said...

You have the chance to affect the outcome and you don't want to take it, your take away your right to complain about the outcome.

George Carlin had another take on who has the right to complain.

Birches said...

I understand the standing decision in Prop. 8. But really, this case isn't over because now can't someone sue the state for not taking up the case? Which means we end up here again in a few years. Can someone explain that to me?

mccullough said...

Congress should amend the Voting Rights Act to require California officials to defend ballot initiatives in court. Protect the franchise and what not.

Eric said...

That's a reasonable principle that does not apply in this case. The federal courts were already involved in that it was a federal court that overturned Prop 8.

That's what bothers me. If the California voters don't have standing to appeal this should have stayed at the state level where it belongs.

Eric said...

The Tea Party embodies the "virtuous citizenry" trying to keep the country from living within its means.

It seems at least one person has to bring the crazy to every thread.

El Pollo Raylan said...

That's probably the least logical thing I've read all day.

Alternatively, we could ask every person but one refrain from voting and have a lottery to decide who gets to vote.

Michelle Dulak Thomson said...

Now, I happen to think that the CA Constitution ought to be declared a disaster zone, and that the two worst things in it are (a) amendment by initiative, and (b) all the amendments made by initiative.

That said, the whole point of the initiative process is that the people are allowed to legislate where the state government doesn't want to. If the state courts can strike down duly-enacted amendments to the state Constitution, and challenges to the court decisions can't proceed because the state itself declines to defend the law, what's the point of the initiative process? If the state government can quash any initiative just by letting a court strike it down and then declining to defend it on appeal ...

The DOMA case was even odder, in that the Government declined to defend the law, while simultaneously declining to refund the widowed lesbian spouse's wrongfully exacted inheritance taxes.

bagoh20 said...

"Alternatively, we could ask every person but one refrain from voting and have a lottery to decide who gets to vote."

That's an awesome idea! All you have to do is keep the lottery clean and simple, and it would totally eliminate corruption. I like it.

Revenant said...

That's probably the least logical thing I've read all day.

Hardly, but I can guess what logical fallacy you're committing: the slippery slope fallacy. :)

Defenders of the "your vote matters" myth generally point out that if, e.g., all the Republicans stayed home, the Democrats would always win. Which is true, but that isn't what's under discussion. The question isn't "does it matter if all the Republicans stay home" -- the question is "does it matter if you, personally, stay home". The answer to that question, where state and federal elections are concerned, is "no".

In order to claim that my vote matters, you have to posit that either (a) the candidate will lose by 1 vote if I stay home or (b) through unexplained processes, my decision to stay home will cause other people to stay home, too, and that will cost the candidate I would have voted for the election.

It gets even more ridiculous if you're talking about, say, a Presidential election. I live in California; either the election is close and California goes to the Democrats, or the Republican is winning in a landslide and California might hop on the bandwagon. In neither case does my vote mean diddly-shit to the outcome of the election. There is no plausible scenario in which California defects from the Democratic Party in an otherwise close election -- not without massive demographic changes happening first.

El Pollo Raylan said...

An old reference from the 1960's gives a cogent analysis of the mechanics of one-party politics in Jim Crow South which also applies to any modern one-party State such as California:

A politics that lacks coherence, i.e. that is insufficiently structured to give voters a meaningful choice or to impose responsibility to voters both when campaigning and when in office, tends to impede the formation of aggressive popular majorities and to play into the hands of the adherents of the status quo. Consequently the principle beneficiaries of southern one-partyism have been those groups and interests which are cohesive, alert, informed, well-organized, well-financed and capable of effective action, and which have a tangible material stake in government policies to impel them to political activity. The adverse effects of the one party structure on state politics, in short, have been borne most heavily by the disadvantaged elements of the population, by "have not" persons who score low on the characteristics just cited. It is well to remember, in connection with subsequent analysis in this paper, that economic conservatives have a considerable stake in maintaining politics at a low level of clarity and coherence.*

Sindler's message is that two-party competition is good in politics. Note especially the term "economic conservatives" which back then meant—and still does mean—vested interests; there is an alliance between political power and economic power.

Apply Sindler's analysis to modern day California politics. Who are the modern day "have nots" in California and who are the modern day "economic conservatives"?

The "have nots" are still the traditional minorities, but now also includes the young, and single-parent families, etc. They are the so-called low information voters in modern political parlance. And they were largely Obama voters in the last election. A growing class of "have nots" is anyone caught out without a job or a decent pension.

Who are the modern day "economic conservatives"? Nationally, we know who they are--"evil republicans" like Mitt Romney. But who are they in California, where one-partyism is even more entrenched than ever? Are they just the wealthiest Californians--the ones with the greatest economic stake in the state? The same ones vilified in the last election? Yes and no. According to Sindler's analysis of one-partyism, economic interests align with political power. It boggles my mind that "economic conservatives"—those in favor of the status quo—are the Bay Area and Hollywood moneyed elite, even though they fit the description of being aligned with the one-party political class.
___________________
*Sindler, Allan P. "The South In Political Transition." in The South In Continuity And Change, edited by John C. McKinney and Edgar T. Thompson, Duke University Press (1965), p. 302.

Revenant said...

revenant should teach civics to young people. What an inspiration!

Could you look a child in the eye and tell him, honestly and with a straight face, that Congress serves the American people? Or that the President does? Or that the courts interpret the law according to the Constitution, or that laws and regulations are passed because they are needed?

I couldn't. I'm mildly annoyed that my 8th grade Civics teachers could. :)

It might do kids some good if we explained to them that in actuality Congress serves the people who give them money, that few voters have any actual knowledge of the things they are voting on -- and that, quite honestly, your personal vote doesn't mean a damned thing when there are millions of other ballots being cast.

El Pollo Raylan said...

The depths of your cynicism cannot be fathomed, revenant.

El Pollo Raylan said...

Could you look a child in the eye and tell him, honestly and with a straight face, that Congress serves the American people?

Actually, I could--because I have one of the decent ones--49th District.

Revenant said...

Who are the modern day "economic conservatives"? Nationally, we know who they are--"evil republicans" like Mitt Romney.

Don't confuse "rich" with "economically conservative". If the man behind RomneyCare is economically conservative, the term has no meaning.

El Pollo Raylan said...

Revmo: Nice deflection!

Revenant said...

The depths of your cynicism cannot be fathomed, revenant.

The correct term for withholding trust from people previously shown to be untrustworthy is "common sense", not "cynicism". Refusing to ever loan out money because you assume everyone's a cheat is cynicism. Refusing to extend a tenth $50 loan to a drug-addicted relative who denies ever borrowing the other $450? Not cynicism.

A person who trusts the federal government isn't optimistic or good-natured or open-minded. He's just... not that bright. :)

Actually, I could--because I have one of the decent ones--49th District.

I didn't say "your congressman" and "you" -- I said "Congress" and "the American people".

Revenant said...

Revmo: Nice deflection!

And the thing you think I was trying to deflect attention from was...?

El Pollo Raylan said...

I didn't say "your congressman" and "you" -- I said "Congress" and "the American people".

I took it to mean "what would I say to my kid with a straight face." I'd also say to him/her that other people aren't as lucky and that the parts sum to whole--unfortunately.

And there was no reason to imply that I was stupid, dipshit.

El Pollo Raylan said...

:)

El Pollo Raylan said...

And the thing you think I was trying to deflect attention from was...?

Go substitute your favorite "economic conservative" in place of Romney and continue from there.

Revenant said...

And there was no reason to imply that I was stupid, dipshit.

I apologize for implying, dumbass. :)

Revenant said...

Go substitute your favorite "economic conservative" in place of Romney and continue from there.

You just discussed the implications of one-party rule and boggled at them.

My only reply would be "yes, and?". It has no bearing on what I was talking about. :)

Edmund said...

In the Erwin Chemerinsky article, he says that this is the only clause in the constitution that nonjusticiability renders a nullity. What about the "emoluments clause" that was clearly violated by the appointment of Hilary Clinton to the post of Secretary of State? IIRC, it was said that nobody had standing to sue to block her appointment.

Dante said...

Eric,

I don't know whether you disdain the tea party, but that was a typo on my part.

The it should have read trying to keep the government living within its means.

Or perhaps you didn't notice Ann inviting us to talk about base foundational stuff. I think we ought to. The current path isn't working, and we need to back up, and take a right, instead of left, turn.

Regards,

Dante

Eric said...

Could you look a child in the eye and tell him, honestly and with a straight face, that Congress serves the American people? Or that the President does? Or that the courts interpret the law according to the Constitution, or that laws and regulations are passed because they are needed?

I couldn't. I'm mildly annoyed that my 8th grade Civics teachers could. :)


Might have been true when you were in eighth grade.

Eric said...

I don't know whether you disdain the tea party, but that was a typo on my part.

It just seemed completely at odds with reality. I didn't realize it was a typo.

Eric said...

It's not going to end well. 20 million people are not going to just sit down and shut up when they're told, time after time, they don't have standing when somehow the other side always does.

Skeptical Voter said...

Basically Jerry Brown and Chief Justice Roberts don't give a flying fig what the California voters want. Silly peasants should know to keep their place and not bother their betters.

And I'm a California voter.

Carl said...

I think the Chief was right. Arguing otherwise would open the floodgates. The correct solution for Prop 8 supporters was to make defending it a campaign issue in the governor's race, and elect a freaking governor who would defend it vigorously.

The plain fact of the matter is that Californians have spoken with forked tongue. They voted for Prop 8, and then they voted for Governor Moonbeam. Those are inconsistent choices, and one must be ignored. That, really, is all the Chief said, I think, and he was quite right to say so. It treats the voters of California as adults, and rightfully so. If the state is so muddle-minded as to fail to elect a chief executive willing to defend a constitutional amendment they want defended....well, they deserve what they get. It's not the problem of the Supreme Court to rescue them from their ADD folly.

El Pollo Raylan said...

Carl wrote: It treats the voters of California as adults, and rightfully so. If the state is so muddle-minded as to fail to elect a chief executive willing to defend a constitutional amendment they want defended....well, they deserve what they get. It's not the problem of the Supreme Court to rescue them from their ADD folly.

You should expand that notion and blame yourself for electing Obama since it logically follows from your belief that "voters of California" are monolithic.

Michelle Dulak Thomson said...

Ann,

I think the initiative violates the guarantee, because you don't have a legislative body deliberating and voting together, with room for debate and amendment. You just have a lot of voters, in solitary fashion, going to voting booths, and the language is fixed, often in a terribly written and ambiguous way.

If I'm reading you correctly, you're saying that the CA Constitution has been in violation of the US Constitution for more than a century. Isn't it odd that no one noticed?

rcocean said...

Lets see, the people of California were using the initiative process for 60-70 years to pass legislation. But the power elite hated this. So, some clever dick figured out the way to nullify the results. Just to get some Fed judge to overrule it,'cause its 'unconstitutional' doncha know (hehe, snicker, snicker). Then you refuse to appeal it. Mission accomplished. You've pissed on democracy and the peoples will. But its OK, as long as ruling elite agree.

And then Althouse, Ms. Constitutional Lawyer, states she never liked that "democracy thing" and "feels" that it should be "unconstitutional".

Well, Althouse just get call up drama queen Kennedy get him to agree. After all, its not what the Constitution says, its what 5 Ivy league lawyers SAY it is.

James said...

Big fuckin surprise, lawyer supports the Supreme Court ignoring shit.

Rusty said...

Revenent said,
"Now, here is an actual fact: no vote you have ever cast in any state or federal election has ever had a chance of affecting the outcome. Your belief that your vote matters is purely delusional. In theory only the deciding vote matters, and you've never cast one. In practice, not even the deciding vote matters -- if the election's that close, it all comes down to which party has the better lawyers and the most judges."

Well. In Illinois, it depends on how many people you can pay to vote Democrat.
Democrats win a lot in Illinois because they have the cheating part down to a science.

Calypso Facto said...

It may be the "correct" interpretation of standing, but it still strikes me as sad that the Court chooses to make a rare showing of respect for federalism and Constitutional process when it's the defense of the will of voting citizens at stake.

Anthony said...

So California Proposition 8 was overturned because the initiative sponsors do not have standing in Federal Court, and the State of California, which does, refused to appeal the judgement against it. Some questions:

What happens when Texas (or some other state) with a similar constitutional ban on same-sex marriage gets sued in Federal District Court, and prevails, and continues to defend against appeals? (Is the District Court of Northern California's decision binding on other districts?) How about if the state loses, then appeals?

Could a future Republican California AG (really, really hypothetical here!) decide to appeal the District Court ruling? Presumably, there's a time limit, but was the clock running through all these other hearings, or is it only restarted with the Supreme Court's decision?

Anthony said...

Michelle -

If the state courts can strike down duly-enacted amendments to the state Constitution, and challenges to the court decisions can't proceed because the state itself declines to defend the law, what's the point of the initiative process?

The State courts didn't strike down Prop 8. The opponents had to take it to Federal Court, because Prop 8 was constitutional under California's constitution (since it was newer, it would override any previous articles which it might contradict).

Eric said...

Whether or not prop 8 was change to the state constitution was a bit of a muddle. Initiatives in California can alter the state constitution, but you need a different percentage of the vote depending on whether the change is an "amendment" or a "revision". Predictably, the vote tally fell in between the two.

So the state court system had a legitimate reason to be involved.