General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsObama deserves credit for the Supreme Court decision today. All the justices he appointed voted
against discrimination
warrior1
(12,325 posts)geek tragedy
(68,868 posts)HardTimes99
(2,049 posts)Clarence Thomas (arguably the worst appointment in the history of the SCOTUS).
Bluenorthwest
(45,319 posts)Of the four Obama nominee votes cast, 3 were favorable to equality, one was not.
RudynJack
(1,044 posts)She was in the dissent, but I don't know if she wrote her own opinion. I'm guessing her reasoning differed greatly from Thomas'.
She dissented on the decision to remand it based on standing. Perhaps she wanted to outright overturn it, while Thomas probably wanted to affirm it.
Bluenorthwest
(45,319 posts)You admit that you don't know, you are guessing. I'm basing my guess on her vote and her past statements. You base yours on the need to say she was with us. Perhaps she voted like Thomas because she is the opposite of Thomas. Perhaps not.
But the Obama appointments did not vote 100% with us today. That is the fact. Why we don't know, we being you and me both.
RudynJack
(1,044 posts)Voting against dismissing the case on standing in no way indicates she was ready to uphold Prop 8.
You have a strange, weird obsession with Sotomayor that has no basis in reality.
stevenleser
(32,886 posts)of their dissent below which was written by Kennedy.
There is nothing you can gather from that dissenting vote by itself in terms of whether they would have voted for or against upholding Prop 8 if that case were decided on its merits rather than standing. If anything, Kennedy's and Sotomayor's vote on DOMA suggests they would have used a vote on the merits to put Proposition 8 down much more firmly than simply a decision on standing.
JUSTICE KENNEDY, with whom JUSTICE THOMAS, JUSTICE ALITO, and JUSTICE SOTOMAYOR join, dissenting.
The Courts opinion is correct to state, and the Supreme
Court of California was careful to acknowledge, that a
proponents standing to defend an initiative in federal
court is a question of federal law. Proper resolution of the
justiciability question requires, in this case, a threshold
determination of state law. The state-law question is how
California defines and elaborates the status and authority
of an initiatives proponents who seek to intervene in court
to defend the initiative after its adoption by the electorate.
Those state-law issues have been addressed in a metic-
ulous and unanimous opinion by the Supreme Court of
California.
Under California law, a proponent has the authority to
appear in court and assert the States interest in defending an enacted initiative when the public officials charged
with that duty refuse to do so. The State deems such an
appearance essential to the integrity of its initiative process. Yet the Court today concludes that this state-defined
status and this state-conferred right fall short of meeting
federal requirements because the proponents cannot point
to a formal delegation of authority that tracks the requirements of the Restatement of Agency. But the State
Supreme Courts definition of proponents powers is bind-2 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
ing on this Court. And that definition is fully sufficient to
establish the standing and adversity that are requisites
for justiciability under Article III of the United States
Constitution.
In my view Article III does not require California, when
deciding who may appear in court to defend an initiative
on its behalf, to comply with the Restatement of Agency or
with this Courts view of how a State should make its laws
or structure its government. The Courts reasoning does
not take into account the fundamental principles or the
practical dynamics of the initiative system in California,
which uses this mechanism to control and to bypass pub-
lic officialsthe same officials who would not defend the
initiative, an injury the Court now leaves unremedied.
The Courts decision also has implications for the 26 other
States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials
decline to defend an initiative in litigation. See M. Waters,
Initiative and Referendum Almanac 12 (2003). In my sub-
mission, the Article III requirement for a justiciable case
or controversy does not prevent proponents from having
their day in court.
These are the premises for this respectful dissent.
I
As the Court explains, the State of California sustained
a concrete injury, sufficient to satisfy the requirements of
Article III, when a United States District Court nullified a
portion of its State Constitution. See ante, at 11 (citing
Maine v. Taylor, 477 U. S. 131, 137 (1986)). To determine
whether justiciability continues in appellate proceedings
after the State Executive acquiesced in the District Courts
adverse judgment, it is necessary to ascertain what persons, if any, have authority under state law to represent
the States interests in federal court. Karcher v. May, 484 Cite as: 570 U. S. ____ (2013) 3
KENNEDY, J., dissenting
U. S. 72, 82 (1987); see also Arizonans for Official English
v. Arizona, 520 U. S. 43, 65 (1997).
As the Court notes, the California Elections Code does
not on its face prescribe in express terms the duties or
rights of proponents once the initiative becomes law. Ante,
at 8. If that were the end of the matter, the Courts analysis would have somewhat more force. But it is not the end
of the matter. It is for California, not this Court, to determine whether and to what extent the Elections Code
provisions are instructive and relevant in determining the
authority of proponents to assert the States interest in
postenactment judicial proceedings. And it is likewise not
for this Court to say that a State must determine the
substance and meaning of its laws by statute, or by judicial decision, or by a combination of the two. See Sweezy
v. New Hampshire, 354 U. S. 234, 255 (1957) (plurality
opinion); Dreyer v. Illinois, 187 U. S. 71, 84 (1902). That,
too, is for the State to decide.
This Court, in determining the substance of state law, is
bound by a state courts construction of a state statute.
Wisconsin v. Mitchell, 508 U. S. 476, 483 (1993). And the
Supreme Court of California, in response to the certified
question submitted to it in this case, has determined that
State Elections Code provisions directed to initiative
proponents do inform and instruct state law respecting the
rights and status of proponents in postelection judicial
proceedings. Here, in reliance on these statutes and the
California Constitution, the State Supreme Court has held
that proponents do have authority under California law
to appear and assert the states interest in the initiatives
validity and appeal a judgment invalidating the measure
when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so. Perry
v. Brown, 52 Cal. 4th 1116, 1127, 265 P. 3d 1002, 1007
(2011).
The reasons the Supreme Court of California gave for its 4 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
holding have special relevance in the context of determining whether proponents have the authority to seek a
federal-court remedy for the States concrete, substantial,
and continuing injury. As a class, official proponents are
a small, identifiable group. See Cal. Elec. Code Ann.
§9001(a) (West Cum. Supp. 2013). Because many of their
decisions must be unanimous, see §§9001(b)(1), 9002(b),
they are necessarily few in number. Their identities
are public. §9001(b)(2). Their commitment is substantial.
See §§96079609 (West Cum. Supp. 2013) (obtaining pe-
tition signatures); §9001(c) (monetary fee); §§9065(d),
9067, 9069 (West 2003) (drafting arguments for official
ballot pamphlet). They know and understand the purpose
and operation of the proposed law, an important requisite
in defending initiatives on complex matters such as taxation and insurance. Having gone to great lengths to convince voters to enact an initiative, they have a stake in the
outcome and the necessary commitment to provide zealous
advocacy.
Thus, in California, proponents play a unique role . . .
in the initiative process. 52 Cal. 4th, at 1152, 265 P. 3d,
at 1024. They have a unique relationship to the voterapproved 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 initiatives
enactment into law. Ibid.; see also id., at 1160, 265 P. 3d,
at 1030 (because of their special relationship to the initiative measure, proponents are the most obvious and
logical private individuals to ably and vigorously defend
the validity of the challenged measure on behalf of the
interests of the voters who adopted the initiative into
law). Proponents authority under state law is not a
contrivance. It is not a fictional construct. It is the product of the California Constitution and the California Elections Code. There is no basis for this Court to set aside
the California Supreme Courts determination of state Cite as: 570 U. S. ____ (2013) 5
KENNEDY, J., dissenting
law.
The Supreme Court of California explained that its
holding was consistent with recent decisions from other
States. Id., at 11611165, 265 P. 3d, at 10311033. In
Sportsmen for I143 v. Fifteenth Jud. Ct., 2002 MT 18,
308 Mont. 189, 40 P. 3d 400, the Montana Supreme Court
unanimously held that because initiative sponsors may be
in the best position to defend their interpretation of the
initiative and had a direct, substantial, legally protectable interest in the lawsuit challenging that interpretation, they were entitled to intervene as a matter of right.
Id., at 194195, 40 P. 3d, at 403. The Alaska Supreme
Court reached a similar unanimous result in Alaskans
for a Common Language Inc., v. Kritz, 3 P. 3d 906 (2000).
It noted that, except in extraordinary cases, a sponsors
direct interest in legislation enacted through the initiative
process and the concomitant need to avoid the appearance
of [a conflict of interest] will ordinarily preclude courts
from denying intervention as of right to a sponsoring group.
Id., at 914.
For these and other reasons, the Supreme Court of
California held that the California Elections Code and
Article II, §8, of the California Constitution afford proponents the authority . . . to assert the states interest in the
validity of the initiative when State officials decline to do
so. 52 Cal. 4th, at 1152, 265 P. 3d, at 1024. The court
repeated this unanimous holding more than a half-dozen
times and in no uncertain terms. See id., at 1126, 1127,
1139, 1149, 1151, 1152, 1165, 256 P. 3d, at 1006, 1007,
1015, 1022, 1024, 1025, 1033; see also id., at 11691170,
265 P. 3d, at 10361037 (Kennard, J., concurring). That
should suffice to resolve the central issue on which the
federal question turns. 6 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
II
A
The Court concludes that proponents lack sufficient
ties to the state government. It notes that they are not
elected, answer to no one, and lack a fiduciary obligation
to the State. Ante, at 15 (quoting 1 Restatement (Third) of
Agency §1.01, Comments e, f (2005)). But what the Court
deems deficiencies in the proponents connection to the
State government, the State Supreme Court saw as essential qualifications to defend the initiative system. 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. 52 Cal. 4th, at 1140, 265 P. 3d, at
1016 (internal quotation marks omitted). The right to
adopt initiatives has been described by the California
courts as one of the most precious rights of [the States]
democratic process. Ibid. (internal quotation marks
omitted). That historic role for the initiative system grew
out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost
control of the political process. Ibid. The initiatives
primary purpose, then, was to afford the people the
ability to propose and to adopt constitutional amendments
or statutory provisions that their elected public officials
had refused or declined to adopt. Ibid.
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. See id., at 1160, 265 P. 3d, at 1030; cf.
Alaskans for a Common Language, supra, at 914 (noting
that proponents must be allowed to defend an enacted
initiative in order to avoid the perception, correct or
not, that the interests of [the proponents] were not being Cite as: 570 U. S. ____ (2013) 7
KENNEDY, J., dissenting
defended vigorously by the executive branch). Giving the
Governor and attorney general this de facto veto will erode
one of the cornerstones of the States governmental structure. See 52 Cal. 4th, at 11261128, 265 P. 3d, at 1006
1007. And in light of the frequency with which initiatives
opponents resort to litigation, the impact of that veto
could be substantial. K. Miller, Direct Democracy and the
Courts 106 (2009) (185 of the 455 initiatives approved in
Arizona, California, Colorado, Oregon, and Washington
between 1900 and 2008 were challenged in court). As a
consequence, California finds it necessary to vest the re-
sponsibility and right to defend a voter-approved initiative
in the initiatives proponents when the State Executive
declines to do so.
Yet today the Court demands that the State follow the
Restatement of Agency. See ante, at 1516. There are
reasons, however, why California might conclude that a
conventional agency relationship is inconsistent with the
history, design, and purpose of the initiative process. The
State may not wish to associate itself with proponents or
their views outside of the extremely narrow and limited
context of this litigation, 52 Cal. 4th, at 1159, 265 P. 3d, at
1029, or to bear the cost of proponents legal fees. The
State may also wish to avoid the odd conflict of having a
formal agent of the State (the initiatives proponent) arguing in favor of a laws validity while state officials (e.g., the
attorney general) contend in the same proceeding that it
should be found invalid.
Furthermore, it is not clear who the principal in an
agency relationship would be. It would make little sense if
it were the Governor or attorney general, for that would
frustrate the initiative systems purpose of circumventing
elected officials who fail or refuse to effect the public will.
Id., at 11391140, 265 P. 3d, at 1016. If there is to be a
principal, then, it must be the people of California, as the
ultimate sovereign in the State. See ibid., 265 P. 3d, at 8 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
10151016 (quoting Cal. Const., Art. II, §1) (All political
power is inherent in the people). But the Restatement
may offer no workable example of an agent representing
a principal composed of nearly 40 million residents of a
State. Cf. 1 Restatement (Second) of Agency, p. 2, Scope
Note (1957) (noting that the Restatement does not state
the special rules applicable to public officers); 1 Restatement (First) of Agency, p. 4, Scope Note (1933) (same).
And if the Courts concern is that the proponents are
unaccountable, that fear is neither well founded nor suf-
ficient to overcome the contrary judgment of the State
Supreme Court. It must be remembered that both elected
officials and initiative proponents receive their authority
to speak for the State of California directly from the people. The Court apparently believes that elected officials
are acceptable agents of the State, see ante, at 1112,
but they are no more subject to ongoing supervision of
their principali.e., the people of the Statethan are
initiative proponents. At most, a Governor or attorney
general can be recalled or voted out of office in a subsequent election, but proponents, too, can have their authority
terminated or their initiative overridden by a subsequent
ballot measure. Finally, proponents and their attorneys, like all other litigants and counsel who appear before
a federal court, are subject to duties of candor, deco-
rum, and respect for the tribunal and co-parties alike, all
of which guard against the possibility that initiative proponents will somehow fall short of the appropriate stan-
dards for federal litigation.
B
Contrary to the Courts suggestion, this Courts precedents do not indicate that a formal agency relationship is
necessary. In Karcher v. May, 484 U. S. 72 (1987), the
Speaker of the New Jersey Assembly (Karcher) and President of the New Jersey Senate (Orechio) intervened in Cite as: 570 U. S. ____ (2013) 9
KENNEDY, J., dissenting
support of a school moment-of-silence law that the States
Governor and attorney general declined to defend in court.
In considering the question of standing, the Court looked
to New Jersey law to determine whether Karcher and
Orechio had authority under state law to represent the
States interest in both the District Court and Court of
Appeals. Id., at 82. The Court concluded that they did.
Because the New Jersey Supreme Court ha[d] granted
applications of the Speaker of the General Assembly and
the President of the Senate to intervene as partiesrespondent on behalf of the legislature in defense of a
legislative enactment, the Karcher Court held that standing had been proper in the District Court and Court of
Appeals. Ibid. By the time the case arrived in this Court,
Karcher and Orechio had lost their presiding legislative
offices, without which they lacked the authority to represent the State under New Jersey law. This, the Court
held, deprived them of standing. Id., at 81. Here, by
contrast, proponents authority under California law is not
contingent on officeholder status, so their standing is
unaffected by the fact that they hold no office in Californias Government. Ante, at 12.
Arizonans for Official English v. Arizona, 520 U. S. 43
(1997), is consistent with the premises of this dissent, not
with the rationale of the Courts opinion. See ante, at 13
14. There, the Court noted its serious doubts as to the
aspiring defenders standing because there was no Ari-
zona law appointing initiative sponsors as agents of the
people of Arizona to defend, in lieu of public officials, the
constitutionality of initiatives made law of the State.
520 U. S., at 65. The Court did use the word agents; but,
read in context, it is evident that the Courts intention was
not to demand a formal agency relationship in compliance
with the Restatement. Rather, the Court used the term
as shorthand for a party whom state law authorizes to
represent the States interests in court. Ibid. 10 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
Both the Court of Appeals and the Supreme Court of
California were mindful of these precedents and sought to
comply with them. The state court, noting the importance
of Arizonans for Official English, expressed its understanding that the high courts doubts as to the official
initiative proponents standing in that case were based, at
least in substantial part, on the fact that the court was not
aware of any Arizona law appointing initiative sponsors
as agents of the people of Arizona to defend . . . the constitutionality of initiatives made law of the State. 52 Cal.
4th, at 11361137, 265 P. 3d, at 10131014 (quoting 520
U. S., at 65). Based on this passage, it concluded that
nothing in [Arizonans for Official English] indicates that
if a states law does authorize the official proponents of an
initiative to assert the states interest in the validity of a
challenged state initiative when the public officials who
ordinarily assert that interest have declined to do so, the
proponents would not have standing to assert the states
interest in the initiatives validity in a federal lawsuit.
Id., at 1137, 265 P. 3d, at 1014.
The Court of Appeals, too, was mindful of this requirement. Perry v. Brown, 671 F. 3d 1052, 10721073 (CA9
2012). Although that panel divided on the proper resolution of the merits of this case, it was unanimous in concluding that proponents satisfy the requirements of Article
III. Compare id., at 10701075 (majority opinion), with
id., at 10961097 (N. R. Smith, J., concurring in part and
dissenting in part). Its central premise, ignored by the
Court today, was that the States highest court [had] held
that California law provides precisely what the Arizonans
Court found lacking in Arizona law: it confers on the
official proponents of an initiative the authority to assert
the States interests in defending the constitutionality of
that initiative, where state officials who would ordinarily
assume that responsibility choose not to do so. Id., at
1072 (majority opinion). The Court of Appeals and the Cite as: 570 U. S. ____ (2013) 11
KENNEDY, J., dissenting
State Supreme Court did not ignore Arizonans for Official
English; they were faithful to it.
C
The Courts approach in this case is also in tension with
other cases in which the Court has permitted individuals
to assert claims on behalf of the government or others.
For instance, Federal Rule of Criminal Procedure 42(a)(2)
allows a court to appoint a private attorney to investigate
and prosecute potential instances of criminal contempt.
Under the Rule, this special prosecutor is not the agent of
the appointing judge; indeed, the prosecutors determination of which persons should be targets of the investigation, what methods of investigation should be used, what
information will be sought as evidence, whom to charge,
and other decisions . . . critical to the conduct of a prosecution, are all made outside the supervision of the court.
Young v. United States ex rel. Vuitton et Fils S. A., 481
U. S. 787, 807 (1987). Also, just as proponents have been
authorized to represent the State of California, [p]rivate
attorneys appointed to prosecute a criminal contempt
action represent the United States, United States v. Providence Journal Co., 485 U. S. 693, 700 (1988). They are
appointed solely to pursue the public interest in vindication of the courts authority, Young, supra, at 804, an
interest thatlike Californias interest in the validity of
its lawsis unique to the sovereign, Providence Journal
Co., supra, at 700. And, although the Court dismisses the
proponents standing claim because initiative proponents
are not elected and decide for themselves, with no review, what arguments to make and how to make them in
defense of the enacted initiative, ante, at 15, those same
charges could be leveled with equal if not greater force at
the special prosecutors just discussed. See Young, supra,
at 807.
Similar questions might also arise regarding qui tam 12 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
actions, see, e.g., Vermont Agency of Natural Resources v.
United States ex rel. Stevens, 529 U. S. 765, 771778
(2000); suits involving next friends litigating on behalf of
a real party in interest, see, e.g., Whitmore v. Arkansas,
495 U. S. 149, 161166 (1990); or shareholder-derivative
suits, see, e.g., Gollust v. Mendell, 501 U. S. 115, 125126
(1991). There is no more of an agency relationship in any
of these settings than in the instant case, yet the Court
has nonetheless permitted a party to assert the interests
of another. That qui tam actions and next friend litigation may have a longer historical pedigree than the initiative process, see ante, at 1213, is no basis for finding
Article IIIs standing requirement met in those cases
but lacking here. In short, the Court today unsettles its
longtime understanding of the basis for jurisdiction in
representative-party litigation, leaving the law unclear and
the District Courts judgment, and its accompanying statewide injunction, effectively immune from appellate review.
III
There is much irony in the Courts approach to justiciability in this case. A prime purpose of justiciability is to
ensure vigorous advocacy, yet the Court insists upon
litigation conducted by state officials whose preference is
to lose the case. The doctrine is meant to ensure that
courts are responsible and constrained in their power, but
the Courts opinion today means that a single district
court can make a decision with far-reaching effects that
cannot be reviewed. And rather than honor the principle
that justiciability exists to allow disputes of public policy
to be resolved by the political process rather than the
courts, see, e.g., Allen v. Wright, 468 U. S. 737, 750752
(1984), here the Court refuses to allow a States authorized
representatives to defend the outcome of a democratic
election.
The Courts opinion disrespects and disparages both the Cite as: 570 U. S. ____ (2013) 13
KENNEDY, J., dissenting
political process in California and the well-stated opinion
of the California Supreme Court in this case. The California Supreme Court, not this Court, expresses concern for
vigorous representation; the California Supreme Court,
not this Court, recognizes the necessity to avoid conflicts
of interest; the California Supreme Court, not this Court,
comprehends the real interest at stake in this litigation
and identifies the most proper party to defend that interest. The California Supreme Courts opinion reflects a
better understanding of the dynamics and principles of
Article III than does this Courts opinion.
Of course, the Court must be cautious before entering a
realm of controversy where the legal community and
society at large are still formulating ideas and approaches
to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject.
As the California Supreme Court recognized, the question
before us involves a fundamental procedural issue that
may arise with respect to any initiative measure, without
regard to its subject matter. 52 Cal. 4th, at 1124, 265
P. 3d, at 1005 (emphasis in original). If a federal court
must rule on a constitutional point that either confirms or
rejects the will of the people expressed in an initiative,
that is when it is most necessary, not least necessary, to
insist on rules that ensure the most committed and vigorous adversary arguments to inform the rulings of the
courts.
* * *
In the end, what the Court fails to grasp or accept is the
basic premise of the initiative process. And it is this. 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 14 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
a century. Through the structure of its government, and
the character of those who exercise government authority,
a State defines itself as sovereign. Gregory v. Ashcroft,
501 U. S. 452, 460 (1991). In California and the 26 other
States that permit initiatives and popular referendums,
the people have exercised their own inherent sovereign
right to govern themselves. The Court today frustrates
that choice by nullifying, for failure to comply with the
Restatement of Agency, a State Supreme Court decision
holding that state law authorizes an enacted initiatives
proponents to defend the law if and when the States usual
legal advocates decline to do so. The Courts opinion fails
to abide by precedent and misapplies basic principles
of justiciability. Those errors necessitate this respectful
dissent.
quinnox
(20,600 posts)Shouldn't the people who filed for the lawsuit in the first place get the credit?
arely staircase
(12,482 posts)i'm confused
onehandle
(51,122 posts)nevergiveup
(4,769 posts)DU, in today's climate, not so much. Regardless, this is a great day for equal rights in America. Yesterday, not so much. The last two days have felt like being on a roller coaster.
JW2020
(169 posts)It's like he's everywhere!
Bluenorthwest
(45,319 posts)equality and justice even as one President after another preached about their deep faith and opposition to equality. Obama has only favored equality for about a year, these suits were filed long before that, when Barack and Michelle were doing Donnie McClurkin shows and calling Rick Warren 'America's Minister' and that sort of thing. 'I'm a Christian, so I'm against it' was their repeated stance.
Perspective. Insulting heroic people to praise a man who was the opposition for most of the battle is crude.
Dawgs
(14,755 posts)CakeGrrl
(10,611 posts)Scurrilous
(38,687 posts)Puglover
(16,380 posts)I do. But could we please have a chance to just celebrate for abit before we make it all about Obama. Yes, he deserves some credit.
And yes yes, the Democrats are a billion times better on this then the Pukes.
great white snark
(2,646 posts)You want a moratorium on President Obama threads?
Puglover
(16,380 posts)will not satisfy you so I simply will say I appreciate your kudos on our victory today. Very much.
ecstatic
(32,781 posts)No matter what the topic, they have to make a nasty comment. It's personal.