The issue of standing in the Supreme Court's same-sex marriage cases.

Linda Greenhouse explains the 2 standing problems in a way that is accessible to the general reader.

The Windsor case is especially striking, because the plaintiff's stake in the case is knock-you-over-the-head clear and tangible:

Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State. Had she been married to a man, she would have inherited the property tax-free. With DOMA barring the federal government from recognizing same-sex marriage, and the Obama administration taking the position that it will enforce the law until the Supreme Court or Congress tell it otherwise, there certainly seems to be a controversy between the parties sufficient to meet the test of Article III jurisdiction.

But the Obama administration declines to defend the constitutionality of DOMA, and Windsor won in the lower courts, making things nonadversarial, and the federal courts can only resolve actual controversies between the parties. But it's not as if DOMA has gone away. It still affects people, and Congress isn't about to repeal it.

Democrats in Congress wanted no part of defending DOMA, even though the statute had passed both houses in 1996 by big bipartisan majorities and was signed into law by President Bill Clinton. So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch’s abandoned defense of DOMA....

The question in the case is whether this Bipartisan Legal Advisory Group can take over defending the law and thereby preserve the adversarial quality of the case. Obviously, it will be litigated with intensity and excellence. The Group has Paul Clement as its lawyer. But that's not the point in standing doctrine.

"A challenge to a federal law that authorized intercepting international communications involving Americans appeared to face an uphill climb at the Supreme Court..."

"... on Monday, but not one quite as steep as many had anticipated," observes Adam Liptak at the NYT.

The question in the case was whether journalists, lawyers and human rights advocates could show they had been harmed and so had standing to sue, and several justices seemed open to the idea....

The possibility that the courts may never rule on the constitutionality of the law seemed to rankle some of the justices. “Is there anybody who has standing?” Justice Sonia Sotomayor asked....

Justice Antonin Scalia [said] “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court... That just proves that under our system of separated powers, it is none of our business.”

Here's the transcript.

Why an incentive built into Obamacare is backfiring.

Ramesh Ponnuru explains:

Obama’s plan makes tax credits available to people who get health insurance from exchanges set up by state governments. If states don’t establish those exchanges, the federal government will do so for them. The federal exchanges, however, don’t come with tax credits: The law authorizes credits only for people who get insurance from state-established exchanges.

The idea seems to have been to get the states to set up the exchanges, but many — opposed to health care reform — have declined, despite the incentive. So the federal government will have to provide the exchanges, but without the tax credits, people won't be able to afford to buy the insurance.

States have another incentive to refrain from setting up exchanges under the health-care law: It protects companies and individuals in the state from tax increases. The law introduces penalties of as much as $3,000 per employee for firms that don’t provide insurance -- but only if an employee is getting coverage with the help of a tax credit. No state exchanges means no tax credits and thus no employer penalties. The law also notoriously penalizes many people for not buying insurance. In some cases, being eligible for a tax credit and still not buying insurance subjects you to the penalty. So, again, no state exchange means no tax credit and thus fewer people hit by the penalty.

Ponnuru's analysis meets an obstacle: "In May, the Internal Revenue Service decided it would issue tax credits to people who get insurance from exchanges established by the federal government." But his response to that is that these companies and individuals who are set to avoid the penalty will now get stuck with it, so they will have legal claims to challenge the IRS policy. The statute clearly says no tax credits, and there's an expensive consequence for them if the IRS deems the credits into existence.

California Supreme Court decides that Prop 8 sponsors have standing to defend it.

The Court was responding to a state law question referred to it by the 9th Circuit Court of Appeals, which is considering whether the ban on same-sex marriage violates the federal Constitution.

The Supreme Court was emphatic that it would "undermine" the California ballot initiative process if the governor and attorney general can trump the voters by declining to defend such laws in the courts.

"The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power," Chief Justice Tani Cantil-Sakauye wrote for the [unanimous] court....

"This frees up the 9th Circuit to go ahead and decide the constitutional issues on the merits," said Theodore Olson, former U.S. Solicitor General during the Bush administration. "We're anxious to get to a decision on the merits that Proposition 8 is unconstitutional."

ADDED: Here's the California Supreme Court opinion (PDF). The California Supreme Court observes that the 9th Circuit saw the federal issue of standing as hinging on a state law question: whether "the official proponents of an initiative have authority under California law to assert the state‘s interest in the initiative measure‘s validity." The California Supreme Court's opinion stresses the nature of the initiative power, which was adopted "as one means of restoring the people‘s rightful control over their government":

The initiative power would be significantly impaired if there were no one to assert the state‘s interest in the validity of the measure when elected officials decline to defend it in court or to appeal a judgment invalidating the measure. Under article II, section 8 and the Elections Code, the official proponents of an initiative measure have a unique relationship to the voter-approved measure that makes them especially likely to be reliable and vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative‘s enactment into law....

Thus, regardless of the initiative‘s effect on their personal and particularized legally protected interests, the official proponents are the most logical and appropriate choice to assert the state‘s interest in the validity of the initiative measure on behalf of the electors who voted in favor of the measure....

[E]ven though the official proponents of an initiative measure are not public officials the role they play in asserting the state‘s interest in the validity of an initiative measure in this judicial setting does not threaten the democratic process or the proper governance of the state, but, on the contrary, serves to safeguard the unique elements and integrity of the initiative process.

The Freedom From Religion Foundation lacks standing to challenge the President's proclamation of a "national day of prayer."

And so, probably, does everyone else, says the 7th Circuit Court of Appeals (PDF). A "feeling of exclusion" or "alienation" is not the "injury in fact" required by Article III of the Constitution. The panel distinguished cases involving a religious display that induced plaintiffs to What did provide standing, we held, is that the plaintiffs "alter[] their daily commute...incurring costs in both time and money."

We talked about this case a year ago when the district judge, Barbara Crabb (here in Madison) issued an injunction barring the proclamation, saying "the government has taken sides on a matter that must be left to individual conscience." The new decision doesn't reach the merits of the case; standing is a threshold issue. But you can tell what the court thought of the Establishment Clause question:

A President frequently calls on citizens to do things that they prefer not to do—to which, indeed, they may be strongly opposed on political or religious grounds.... [No] (sensible) person [would]  suppose that a court could take a blue pencil to a President’s inaugural address or State of the Union speech and remove statements that may offend some members of the audience. President Lincoln’s second inaugural address, likely the greatest speech ever made by an American President, mentions God seven times and prayer three times, including the sentence: “Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away.” The address is chiseled in stone at the Lincoln Memorial on the National Mall. An argument that the prominence of these words injures every citizen, and that the Judicial Branch could order them to be blotted out, would be dismissed as preposterous.

The Judicial Branch does not censor a President’s speech....

Whatever happened to the "purchase" Larry Tribe thought Elena Kagan had on Anthony Kennedy's brain?

Remember that embarrassing sentence in Larry Tribe's letter pushing President Obama to nominate Elena Kagan? "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind." Remember discussing that in the context of a case called Arizona Christian School Tuition Organization v. Winn when it was argued last fall? I wrote:

This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Many of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. [Lyle] Denniston begins his description [of the argument] with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.

This case has a substantive Establishment Clause issue — whether government is subsidizing religion — and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state....

Today, the Supreme Court came out with the decision in the case and there's Kennedy writing for the majority and Kagan  —with (guess who?) Ginsburg, Breyer, and Sotomayor — writing for the dissent.

The majority said there was no standing, which means that it did not reach the Establishment Clause question.

ADDED: Justice Kennedy makes the key distinction between this case and other cases (notably Flast) in which taxpayers had standing to challenge taxing and spending laws using the Establishment Clause:

[T]ax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience. In that instance the taxpayer’s direct and particular connection with the establishment does not depend on economic speculation or political conjecture. The connec­tion would exist even if the conscientious dissenter’s tax liability were unaffected or reduced. When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment. Any financial injury remains speculative. And awarding some citizens a tax credit allows other citizens to retain control over their own funds in accor­dance with their own consciences.

Dissenting,  Justice Kagan states the opposing position:

Cash grants and targeted tax breaks are means of accomplishing the same government objective — to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.

Still worse, the Court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other.

I love the clarity of Kagan's writing. But it will take more than that to gain purchase on Kennedy's brain. The truth is that Flast is out of line with a whole lot of other standing cases. Distinguishing this case from Flast may seem like a strain, but it's a more a matter of not letting the anomaly grow. Justices Scalia concurs, with Justice Thomas, to say Flast should be overruled altogether, and not just costrained. Scalia is pulling on one side, and Kagan on the other, and Kennedy maintains his purchase on the center.

In the Prop 8 case, the 9th Circuit panel has decided to ask the California Supreme Court to answer a key question of state law.

The state law question is whether the official proponents Prop 8 have "authority to assert the State’s interest in the initiative’s validity... when the public officials charged with that duty refuse to do so."

This is the threshold standing question. Standing is a matter of federal constitutional law, but the 9th Circuit has apparently perceived an element of the issue to depend on state law, and it is seeking an authoritative interpretation of state law from the state's highest court.

I talk about the appellate argument in the Prop 8 case with Emily Bazelon.

The argument in the 9th Circuit Court of Appeals took place yesterday, and Emily and I gabbed about it this morning for Bloggingheads.

The oral argument in the 9th Circuit in the Prop 8 case is about to begin.

The case is Perry v. Schwarzenegger. You can watch live on C-SPAN. I'll update with comments soon.

UPDATE: You can read some details about the case here. I'll have some of my own impressions in a little while.

UPDATE 2: You can watch the whole oral argument here. The first hour of the argument dealt with the threshold question of standing. California Governor Schwarzenegger and Attorney General Jerry Brown were the original defendants in the case, and they have opted not to appeal. Proponents of Prop 8 (which banned same-sex marriage) need a way to intervene using some other party with a personal stake in the outcome or the decision of the district judge, finding Prop 8 unconstitutional, will be the final word on the subject.

It seems as though there should be appellate review, but the constitutional limits on federal court jurisdiction don't depend on how important it is for an issue to be heard. There are technical requirements, and it seems as though the plaintiffs' lawyers did a clever job of setting things up so a district court decision in their favor would be insulated from appellate review. But listening to the oral argument, I got the impression the judges thought it was too clever.

In the second hour, the substantive question boiled down to whether there was a rational basis for excluding gay people from marriage. The pro-Prop 8 side rested heavily on the fact that only heterosexual couples produce babies accidentally. But that has so little to do with the value of excluding gay people from the status of marriage. It's hard even to understand why reserving marriage to heterosexuals would make them do a better job of deploying their reproductive powers. Why should gay people, who aren't even the problem, bear the burden?

9th Circuit stays the Prop 8 case pending appeal.

So... no same-sex marriages in California until the appellate court hears the case. The question whether the Prop 8 proponents have standing to appeal is a threshold question that is still unresolved.

"Matthew McConaughey Cannot Stand Up By Himself."

Ha.

What will the Supreme Court do today?

Get the latest news here.

UPDATE: Thanks to SCOTUSblog for the thrilling presentation of the news. I love the way the live-blog automatically updates — no refreshing of the page needed — and makes that hot-off-the-press typing sound — calling me back from whatever page I've wandered off to.

Now, I was just about to say that today's cases aren't the exciting ones we've been waiting for when the live-blog typed out this, from Tom Goldstein:

The only opinion remaining from the March sitting is Heller. The only Justice without a majority opinion from that sitting is Justice Scalia.

So the eagerly awaited gun rights case is almost surely going to be written by Justice Scalia.

UPDATE 2: Greenlaw v. United States:

May a United States Court of Appeals, acting on its own initiative, order an increase in a defendant’s sentence?

Answer: no.

Rothgery v. Gillespie County:

[A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

The third case, Sprint Communications v. APCC Services, is about standing to sue in federal court, specifically whether assignees of claims have standing. Article III of the Constitution requires the plaintiff in federal court to have a concrete and particularized injury that is fairly traceable to the defendant and likely to be redressed by the requested relief. In this case, the relief would go to the assignor of the claims, not to the plaintiff, the assignee. So was the "redressability" prong of the standing requirement met? Justice Breyer, writing for the majority and answering the question yes, responded to the dissenters this way:

The dissent argues that our redressability analysis could not be more wrong,” because “[w]e have never approved federal-court jurisdiction over a claim where the entire relief requested will run to a party not before the court. Never.” Post, at 5 (opinion of ROBERTS, C. J.). But federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth.

The Roberts dissent, joined by Justices Scalia, Thomas, and Alito, frets about the loosening of standing requirements but takes some comfort in Justice Breyer's stress on precedent. Roberts:

[P]erhaps we should heed the counsels of hope rather than despair. The majority, after all, purports to comply with our Article III precedents, see ante, at 16–18, so those precedents at least live to give meaning to “the judiciary’s proper role in our system of government” another day. Raines, 521 U. S., at 818. What is more, the majority expressly and repeatedly grounds its finding of standing on its conclusion that “history and precedent are clear” that these types of suits “have long been permitted,” ante, at 5, and that there is “a strong tradition” of such suits “during the past two centuries,” ante, at 16, 19. This conclusion is, for the reasons we have set forth, achingly wrong—but at least the articulated test is clear and daunting.

Achingly wrong. That's a new one. Really, I did a LEXIS search of Federal & State Cases, combined, and no one has ever written "achingly wrong" before. But Roberts's point is: The majority read the precedents badly, but at least it showed it cared about precedent.