Monday, December 10, 2012

Standing, Blogging, and Prop 8.

From time to time I post on other people's blogs.  I used to believe blog comments were a one-way conversation with the blogger.  That's not really why I do so any more -- the reason now is that, while there's something interesting on the blogger's site, I generally want to read what their other readers think of a particular point -- the comment threads can become Condorcet juries.  Some blogs are especially useful for that purpose.  One is the Volokh Conspiracy.

From "Supreme Court Grants Prop 8, DOMA Cases"
Orin Kerr, The Volokh Conspiracy
available at
posted a message over there on Friday to Orin Kerr, who is an expert on 4th Amendment case law regarding the Computer Fraud and Abuse Act.  The specific post concerns standing to defend California's Proposition 8.  The nice part was that twenty-two other comments on the message helped me take my own thinking on the subject a couple of more steps down the road, so to speak.

The issue being discussed, standing in the context of the Prop. 8 case, is a big deal for lawyers, but its importance to the public at large is questionable.  For instance,  Margaret Warner of the PBS Newshour referred to it as the "so-called" standing question on Friday's broadcast.  I tend to think the standing question is important, but that the issue will probably prove to be merely interesting rather than determinative.

Inscription on the wall of the Supreme Court Building
from Marbury v. Madison.
I think we as Americans believe courts have the inherent power to hear constitutional challenges of this type, which I think is the pillar of truth at the core of Marbury v. Madison (1803), 5 U.S. 137.  That inherent power cannot be fairly exercised without advocates for either side in the courtroom.  Indeed, if the Prop. 8 advocates are barred from the room, the constitutional question would, ultimately, be a de facto decision by the executive branch, not the judiciary.

We as Americans have more or less accepted that the ultimate arbiters of all constitutional questions will be the courts.  Executive and legislative interference with the court's ability to do so tends to be considered game-playing by the courts, and the Supreme Court appoints counsel to make such "orphan" arguments about once per term. The Prop. 8 case may thus become something of a natural experiment concerning the inherent power of the courts to hear disputes despite efforts by the executive and legislative branches to deprive them of the ability to do so, which should prove interesting to civil procedure scholars, if not ultimately proving important in deciding the case.