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By Bill Altreuter

It has been a long time since I've taken a look at the jurisprudence of Article III standing. If you told me that the last time was when I was taking Al Katz' Federal Courts class in law school I'd believe you. So I don't really have a strong opinion about whether the Prop. 8 proponents have standing to appeal. What I take exception to is the normally sensible Emily Bazelon saying that if the decision of the District Court stands because there is no-one with standing to take the appeal "gay marriage [will have] become legal in California because of what's essentially a technicality". Like hell it is, and besides that, what the hell is "a technicality"?

I'd also like to know how it happens that the Prop. 8 supporters had standing to defend the matter at trial, a question Bazelon raises then walks away from. As Vikram David Amar notes here, "If the Ninth Circuit concludes that the Proposition 8 sponsors lack standing, then what? Although the answer is complicated, my initial sense is that if these sponsors are not appropriate parties on appeal, they also lacked standing to defend in the trial court. Which means the trial itself should not have occurred, because there wasn't the constitutionally required concrete and adverse advocacy on both sides." Amar thinks that in that instance summary judgment would have been appropriate, and that the appellate court would owe less deference to the findings of fact made by Judge Walker. I'm not so sure about that-- I think the court still has to make inquiry, and the plaintiffs still had to make out a prima facia case.

Also, at Volokh, some thoughts on what 9th Circuit judges might get the case. Apparently in the 9th Circuit the tradition is that when a case goes up on appeal, and it has been there before to a given panel on any issue, that panel has the option of taking the full appeal when it is filed. In this instance that would be three Clinton appointees, two of whom clerked for Justice Brennan. Professor Kerr observes that this draw "would tend to make Supreme Court review of this case much more likely." I don't know about that-- it seems to me that the only way the Supreme Court declines to take this case is if the 9th Circuit reverses Judge Walker. It's nice for the likely 9th Circuit panel that they have a chance to affirm a decision from a Reagan appointee, and that must be making the people who go off on the jurisprudence of the 9th Circuit just nuts.

Full post as published by Outside Counsel on August 13, 2010 (boomark / email).