Linda Greenhouse is one of the nation’s premier experts on the Supreme Court. Her latest piece on the federal judiciary, Judges Standing Upside-Down, is a must-read as we await the Fifth Circuit’s latest ruling on the case brought by Republican Governors and Attorneys General to block the President’s Executive Actions on immigration. Greenhouse explores the use of standing – and how Judges, like Andrew Hanen who is hearing the immigration case at the District Court level, have expanded the definition of that term so it comports with their conservative agenda:
Something funny is happening on the way to the courthouse — and I don’t mean county clerks refusing to issue licenses for same-sex marriages. For decades, judicial conservatism has been defined at least in part as strict observance of the elements that make a case justiciable in federal court: a live controversy and a plaintiff with a concrete problem — as opposed to a general grievance — that can be fixed by a favorable ruling. I first learned about the doctrine of standing back when progressive law professors wrung their hands over how flagrantly justices like William H. Rehnquist were invoking standing and other jurisdictional barriers in order to close courthouse doors to meritorious lawsuits.
I suspect that Chief Justice Rehnquist, who died 10 years ago today, would be startled — or, given his sense of irony, at least amused — by how things have flipped. Now it’s conservative judges who rail against “the consequences of our modern obsession with a myopic and constrained notion of standing,” to quote Judge Janice Rogers Brown, one of the federal bench’s more outspoken conservatives. Judge Brown, who sits on the United States Court of Appeals for the District of Columbia Circuit, wrote an opinion last month in a case on the attempt by Joseph M. Arpaio, the notorious Phoenix sheriff, to block the Obama administration’s plan to defer deportation for young undocumented immigrants and for the undocumented parents of United States-born and lawful-resident children.
And, here’s Greenhouse on Hanen:
Judges can be creative, and even a precedent that looks airtight can be malleable. In February, ruling in a lawsuit brought by 26 states, a federal district judge in Houston, Andrew S. Hanen, issued a preliminary injunction against President Obama’s deferral of deportation for parents of American citizens. What, one might ask, was the basis for the states’ standing? What was their claim of concrete injury from the executive actions they were challenging? Not to worry: Judge Hanen found a prospective consequence of the policies that, he declared, met the precedents’ requirement of “injury in fact.” Once permitted to remain in the United States, the beneficiaries of the policy would be entitled to driver’s licenses, he observed. Focusing on Texas (only a single plaintiff in a case needs to establish standing for the case to survive), Judge Hanen said that because the $24 that Texas charged for a driver’s license didn’t cover the state’s actual costs, it would cost “in excess of several million dollars” for Texas to issue licenses to all those newly eligible. Bingo, we have standing!
Greenhouse explains the issue of “standing” – and the role of the current Chief Justice in guarding it.
The classic rationale for a robust doctrine of standing is that it protects the constitutional separation of powers. In 1993, before he became a judge, John G. Roberts Jr. expressed this view in an article published in the Duke Law Journal. “By properly contenting itself with the decision of actual cases or controversies at the instance of someone suffering distinct and palpable injury,” the future chief justice wrote, “the judiciary leaves for the political branches the generalized grievances that are their responsibility under the Constitution.” He further observed: “Separation of powers is a zero-sum game. If one branch unconstitutionally aggrandizes itself, it is at the expense of the other branches.” (Justice Antonin Scalia, then a federal appeals court judge, wrote a law review article in 1983 titled “The Doctrine of Standing as an Essential Element of the Separation of Powers.”)
Greenhouse notes, “As chief justice, John Roberts has had several opportunities to opine on standing.” This, of course, could become critically important if the Texas case gets to the Supreme Court.
