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March 30, 2013

Why The U.S. Supreme Court Should Not Fear That Denying the Proposition 8 Sponsors Federal Standing Will Weaken The Initiative Device (And a Few Other Thoughts on the Oral Argument in Perry v. Hollingsworth)

In the space below, I offer some quick analysis of the U.S. Supreme Court's oral argument on Tuesday in Perry v. Hollingsworth, the case in which same-sex couples challenge California's ban on same-sex marriage, the voter-adopted Proposition 8.

The Court Was Presented With a False Dilemma Concerning Sponsor Standing

Over the last couple of years, I have written in a number of essays (including this one) that I think that the Proposition 8 sponsors should not enjoy standing in federal court to defend the measure, even though the California Attorney General and Governor have failed to defend.  As I have explained, the Proposition 8 sponsors were never elected nor appointed by the voters, and are not accountable to them.  For these and various other related reasons, the sponsors are not appropriate representatives for the State of California.  In short, initiative proponents who are not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments, and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time when litigation is conducted.

At Tuesday's oral argument, many of the Justices (up to five or more, and especially the "liberal" Justices Ginsburg and Kagan) seemed to understand these problems, and so there may be a majority of the Court for the proposition that Article III's "case or controversy" requirement is not satisfied in the present situation.  Even if fewer than five Justices find sponsor standing to be a problem, the sponsor standing issue could drive the result of the case.  Imagine a split in which three Justices want to reverse the Ninth Circuit on the merits, three want to affirm on the merits, and three want to vacate the lower court ruling for lack of standing.  Under such a scenario, the three Justices who would prefer to reverse on the merits might nonetheless join the three who want to vacate for lack of standing, simply to erase a problematic Ninth Circuit ruling that they all feel should not remain as the law of the Ninth Circuit.

The best counterargument (and it came up at oral argument), in favor of sponsor standing, is that if sponsors lack standing to defend initiatives, then elected officials can wrongly "kill" initiatives by simply not defending the measures when the initiatives are challenged.  This is especially problematic because the initiative device (in those states that have it) is derived from a concern that elected public officials sometimes do not act in ways that are faithful to the people's interests and desires, such that direct democracy is needed.  And while most initiatives are a response to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials that is represented by the initiative mechanism does not also carry over to elected executive officials like Governors and Attorneys General. (Consider, for example, an initiative limiting the terms of all elected officials, including executive officials. An Attorney General's self-serving decision not to defend such a measure would rightly be viewed with great public outrage.)

So, a few Justices (perhaps especially Justice Sotomayor) worried aloud, if sponsors are not allowed to defend initiatives in federal court, then the initiative device could be gutted.  But this framing of the issue ignores a key middle ground position:  that state law can authorize sponsors to defend initiatives (in a way that federal courts will respect and accept), but the authorization has to be done carefully and in a way the voters can see.

In fashioning a workable balance between the competing concerns presented by initiative-sponsor standing, the federal courts should recognize the possibility of sponsor standing, but only when the conferral of the power to sponsors to defend an initiative is clearly provided for in state law, and addresses some of the theoretical and logistical problems raised by sponsor standing. Such a rule gives voters adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.

Decisions issued in years past by the California courts that permit, but do not discuss, sponsor standing seem inadequate to confer notice on the voters since, as the U.S. Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court's jurisdiction over a matter are not entitled to any precedential weight. Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative (creating authorities and fiduciary duties that the proponent must honor) as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to  address, among other things:  (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor's power to defend lasts; (3) the question of attorneys' fee liability to be satisfied by public fisc if the defense fails; and (4)   what the relative authority of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative sponsors.

Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision by the California Supreme Court in 2011, perhaps going forward voters in California should know, and take account of, the fact that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court.  (In this regard, I note that the California Supreme Court ruling might not suffice even going forward, because it did not answer some of the key logistical questions about the length of time a sponsor has power to defend the initiative, etc.)   In any event, because such state law clarity was certainly not in place when Proposition 8 itself was passed in 2008 (and I note here that it was passed by a slim margin), the U.S. Supreme Court could easily conclude that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself.  The voters of California in 2008 cannot be said to have appointed persons whom the voters did not even know were being appointed at that time.

The Consequences of a Finding That the Proposition 8 Sponsors Lack Federal Standing

If the Court does dispense with Perry on standing grounds, the Ninth Circuit ruling would be vacated (erased), and the case would go back to the trial court.  The named plaintiffs would (and should) get their marriage licenses (because certainly the government must give a plaintiff the relief she seeks when it defaults, that is, refuses to defend against her challenge).  But the extent to which other Californians would be free from Proposition 8-and when that might happen-depends upon many complexities, including the Governor's reaction to a ruling based on lack of standing, a potential state-wide class action lawsuit, and also the wild-card possibility that certain elected county clerks (these might be the "other people" to whom Chief Justice Roberts referred during oral argument) may be granted standing to defend Proposition 8 if it continues to be enforced in the State yet not defended by the Attorney General and Governor.  The procedural entailments of a Supreme Court ruling on standing grounds are themselves very complicated, and the only reason that they weren't explored much more at oral argument this week was, I expect, the constraint of the limited argument time.

What About the Option of Dismissing the Case Altogether At the Supreme Court?

If the Court doesn't want to reach the merits of the Proposition 8 challenge, it has another option as well-to dismiss the writ of certiorari as "improvidently granted."  Under this approach, the high Court would simply decide, upon closer inspection, that it was a mistake to grant review in the case in the first place, and undo that grant.

A dismissal is possible, but this course of action would need to overcome a few hurdles.  First, ordinarily speaking, for the Court to dismiss a case as improvidently granted (or, to "DIG" it, in Supreme Court parlance), at least six Justices would have to agree.  If four Justices want to keep the case, they typically can, since those same four Justices were all who were needed to grant review in the first place (pursuant to something known as the "Rule of Four.")  To preserve the integrity of the Rule of Four, the Court has traditionally taken the view that at least one of the Justices who voted to grant review (and more than one, if there were more than four votes to grant) would have to be among the majority who want to DIG the case.  And at oral argument, Justice Scalia seemed to believe he spoke for at least four of the Justices who voted to grant review when he suggested that the grant was water under the bridge (his actual words were that "we have crossed that river.")  So unless Justice Kennedy and Chief Justice Roberts both want to DIG the case (assuming one or both initially voted to grant review), mustering a DIG would seem to be hard.

Another reason a DIG may be difficult is that, unlike a ruling that the initiative sponsors lack standing, a DIG would leave the Ninth's Circuit's ruling intact.  The Ninth Circuit ruled that Proposition 8 was constitutionally irrational because: (1) it repealed an existing state-law right to same-sex marriage (rather than simply declined to recognize one); and (2) California had done so much to equalize the treatment of gay and straight couples that it no longer had any good reason for not extending the marriage label to gay couples.  None of the Justices seemed to think that this reasoning made sense.  (Justice Kennedy called it "very odd," and Justice Alito asked if the plaintiff's lawyer was "serious" about this argument.  Even Justice Breyer voiced concern over the perverse incentives it creates.)  Because the Ninth Circuit's ruling could have non-trivial spillover effects in other Western states outside of California and/or externality effects on rights other than the right to marry, many Justices may not want to leave it on the books.

My focus on the procedural issues in Perry in no way suggests the merits discussion at oral argument was unimportant or uninteresting.  But space constraints require that I defer them-and a discussion of the oral argument in the Defense of Marriage Act (DOMA) case, Windsor v. U.S.-until future writings.

Cross-posted from Justia's Verdict.

March 30, 2013

Imploring the Ivy League to Attend to Rural Strivers

One of the most e-mailed items in the New York Times for the past day or so has been Claire Vaye Watkins "The Ivy League Was Another Planet." (The alternative headline is "Elite Colleges Are As Foreign as Mars.") In her op-ed, Watkins recounts her journey from nonmetropolitan Pahrump, Nevada to college at the University of Nevada, Reno. Her story is that of a kid from a working class family in "rural" Nevada (her description; technically, Pahrump is not rural because, though unincorporated, its 2010 population is more than 35,000) who didn't know about colleges or how to pick one.  Lucky for her, Watkins went on to get an MFA from Ohio State and is now an assistant professor of English at Bucknell.

Watkins writes of getting her wake-up call about dramatic variations in educational resources when she was a high school senior, vying for a prestigious state-funded scholarship. That's when she met a peer from a Las Vegas high school who attended a magnet school, took college prep courses, had a tutor, and had spent time abroad.  The variations in resources, she realized, were based on geography:  he was an urban kid and she was a rural one.  But they were also based on class.  She doesn't specify the background of the Vegas teen, but she mentions that her mother and step-father had not gone to college.  I note that Pahrump's poverty rate is a fairly steep 21.1%.  Just 10.1% of residents there have a bachelor's degree or better, compared to about 30% nationwide.

Even after meeting the privileged teen from Vegas, however, Watkins didn't know what she didn't know.  She remained ignorant of the world of elite colleges, a sector that represented the "other planet" or "Mars" of the headline.  Instead, Watkins applied to UN Reno, she explains, because she had once taken a Greyhound bus to visit friends there. As Watkins expresses it, when poor rural kids apply to college (which, I might add, is altogether too rare), they typically apply to those institutions to which they have been "incidentally exposed."

Commenting on what admissions deans at elite schools might do to reach out to high-achieving, poor rural kids--whom they purport to be interested in for reasons of diversity and excellence--Watkins suggests, tongue in cheek, that they do "anything." More specifically, Watkins cleverly contrasts Ivy League efforts to recruit rural kids, which might be characterized by the terms "zip" and "nada," with military efforts to recruit the same kids, which might be characterized as "fulsome" and "robust." Guess who's winning that contest? The military, of course.  Here are just a few of the points Watkins makes:

  • No college rep ever showed up at Pahrump Valley High school, while the military brought a stream of alums through there on a regular basis.
  • The school devoted half a day each year to ensuring that every junior took the Armed Services Vocational Aptitude Battery (ASVAB); that test was free, while taking the ACT and SAT was  not.  
  • "But the most important thing the military did was walk kids and their families through the enlistment process."

Watkins closes by noting that elite colleges need to do more to reach those she calls "the rural poor," concluding that, until they do, "is it any wonder that students in Pahrump and throughout rural America are more likely to end up in Afghanistan than at N.Y.U.?"

The jumping off point for Watkins' op-ed is a recent paper by two profs (from Harvard and Stanford, no less), Caroline Hoxby and Christopher Avery, "The Missing 'One-Offs':  The Hidden Supply of High-Achieving, Low Income Students."  That paper was publicized in the Times last week-end in David Leonhardt's story, "Better Colleges Failing to Lure Talented Poor."  The summary and conclusions of the Hoxby and Avery paper do not talk in terms of rural-urban difference in relation to these missing "one-offs."  (They do, however, employ a tiny bit of geographical nuance in Table 9, listing two categories of "rural" students, those near an urban area and those far from one). Instead, Hoxby and Avery focus on the benefits to students of being in "geographic concentrations of high achievers."  They write in their abstract, for example, that these high-achieving students who fail to apply to elite schools

come from districts too small to support selective public high schools, are not in a critical mass of fellow high achievers, and are unlikely to encounter a teacher or schoolmate from an older cohort who attended a selective college.  

And where might those students be?  mostly in rural schools.  For folks like Watkins, it isn't hard to read between the lines and see that the high achievers most likely to slip between the cracks are kids in rural schools.    

All of this brings to me my own experience.  Like Watkins, I can see that many of the "missing" students Hoxby and Avery are talking about are rural.  My own K-12 school in rural Arkansas had an enrollment of about 400--and no counselor whatsoever to advise on college admissions. The first Ivy League graduates I ever met were professors at the University of Arkansas. I was there because, like many who Hoxby and Avery studied, I assumed it was the best bargain for me.  I didn't apply elsewhere.

I have to trust that the numerous people reading Watkins' tale will believe her revelations of her naiveté regarding college.  I certainly hope so, though I have been struck over the years at how many people are incredulous at my similar tale.  How, they marvel, disbelief in their voices, could you not have known to go to a "good school"?  People of privilege can find it remarkably difficult to believe that other people could really not know the things that are the very intellectual and emotional wall-paper of a life of privilege.

But there is another, related problem:  poor rural kids and the diversity they represent often go unvalued by educational decision makers.  Because these rural kids Watkins is talking about are often white, they don't appear, at first blush, to represent diversity.  Plus, I find privileged whites are just as uncomfortable around working class whites as they are around people of color--maybe more so in this day and age.  That discomfort--unmitigated by the need be politically correct because no PC imperative exists regarding poor whites--may deter the privileged from reaching out to recruit poor whites.  After all, as Watkins points out, it's not like these elite colleges are hurting for applicants.

Finally, privileged metropolitan and cosmopolitan types tend to hold the limitations of rural education against those who are products of it, discounting what these kids have achieved because of the absence of AP classes, the right extracurricular activities, and such.  (Read more here and here).  I recall being on the selection committee for the first round of elite Sturgis Fellows at the University of Arkansas in the late 1980s.  When I spoke up for a candidate with what I considered to have stellar credentials, a professor on the selection committee quickly countered by noting that the student was from a rural school, suggesting that the student's achievements had to be kept in proper perspective--namely that s/he had not been subjected to true intellectual rigor.  I recall meekly pointing out that I, too (then the University of Arkansas's undergraduate valedictorian) was the product of a rural school.  What was I?  chopped liver?  or just an anomaly?  I'll never know how the selection committee saw me.  But perhaps because I protested so meekly, my comment--and the outstanding rural candidate--got no traction.  All of that inaugural group of Sturgis Fellows, as I recall it, were from sizable high schools.    

Cross-posted to ClassCrits, UC Davis Faculty Blog, and SALTLaw Blog.    

March 15, 2013

(Unpersuasive) Challenges to the National Popular Vote Plan: Part One in a Series of Columns

Cross-posted from Justia's Verdict.

Now that the 2012 election is in the rear-view mirror and the 2016 election is still somewhat distant on the horizon, this is an appropriate time to return to the question of presidential election reform.  As I have written about many times (including here) on this and other websites, and in academic journals, one important and prominent reform effort, known as the National Popular Vote (NPV) Compact, seeks to move the country in the direction of making it ever more likely that the President who is elected is the candidate who obtains the most voter support nationwide.

Some Key Background of the NPV Concept

The essential idea (elaborated by me, my brother Akhil Amar and, independently also by Professor Robert Bennett over a decade ago) is to get various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but rather for the candidate who wins the most popular votes nationally. This system, with enough states as signatories, would generally mean that the winner of the Presidential contest would be the person who had won the largest number of votes from individual voters nationwide.  In that way, the plan would ensure that every voter-regardless of the state in which she lives-would have her vote count equally to that of every other voter in the country. Importantly, the agreement, by its own terms, would not go into effect until a sufficient number of states to comprise a majority of the electoral college-that is, states whose electoral college allotments collectively total 270 or more-ratify it.

To date, eight states (Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont and California) and the District of Columbia-comprising 132 electoral college votes altogether (almost half the needed 270 votes)-have adopted the plan.

Various policy arguments have been raised against the NPV idea, and in favor of the status quo.  More importantly for present purposes, however, in the past few years some analysts have raised constitutional objections to the NPV plan.  In the balance of this column and in a subsequent column, I will address some of these arguments.  Many of the constitutional criticisms that have been advanced relate to the compact aspect of the NPV plan, and focus on whether or not Congress would have to approve the coordinated interstate action before the current NPV plan being adopted were implemented.  I have touched on some of these criticisms before, and will return to others in a later writing.

A Challenge to the Ability of Any State, Whether Acting Alone or in Concert with Others, to Allocate Its Electors With an Eye to the National Electorate

But in the space below, I respond to a different line of constitutional challenge laid out by Willamette Law Professor Norman Williams, who wrote in a 2012 law review article that, putting aside the compact aspect of the NPV plan, it is unconstitutional for a state to pick its electors based on the national (as opposed to in-state) popularity of a candidate because such a decision by a state would violate Article II of the Constitution-the provision that tells each state to appoint its electors "in such manner as the legislature thereof may direct"-and the understanding of Article II embraced by the constitutional "framers."

Under Professor Williams' reading of the Constitution, even a state that were not coordinating with other states would be prevented, under Article II, from picking its electors with an eye towards the national vote tally.  (In an earlier law review article, to which I wrote an academic journal response, Professor Williams had suggested, completely unconvincingly to me, that a state that based its electoral college decision on the national electorate would be violating the Equal Protection Clause of the Fourteenth Amendment; this newer article relies instead on Article II and the expectations of the Framers in 1787.)

Professor Williams observes that his reading of Article II "may strike many as counterintuitive."  That may be true, but that is not necessarily fatal from a constitutional viewpoint.  To my mind, the problem with Professor Williams's line of argument is not that is it is not intuitive, but rather that it is not strong.

There are many parts and subparts of Professor Williams's claim, but his thesis can be distilled into two large pieces, each of which I treat in turn.

The Novelty of a State's Looking to the National Electorate

One thing Professor Williams points out is that, until now, no state has tried to pick its electors based upon national voter popularity.  That is true, but it is also largely beside the point.  Sometimes a device has never been tried because it is unconstitutional, but as even Chief Justice Roberts in the Obamacare ruling made clear, novelty is not itself a constitutional infirmity, because "there is a first time for everything."  Indeed, most of the aspects of the presidential election process we take for granted today would have been novel for much of America's history.  The rise of political parties; the near-automatic access that the major parties have to put their candidates on presidential ballots; the development of the "short-form" ballot - by which voters register preferences for actual Presidential candidates, rather than for individual presidential electors (the folks who make up the so-called electoral college); the requirement of many states that electors take pledges to support particular candidates, etc. were all unheard of for generations after the founding.  And yet no one thinks that any of these devices is unconstitutional simply because it was new when introduced.

Moreover, the idea that states would want to look to the national electorate at this point in history in particular is not hard to explain.  The 2000 election was the first modern presidential contest (after the country has internalized the one-person, one-vote ideal of the 1960s redistricting cases) in which the successful president candidate obtained fewer votes nationwide than his opponent.  Moreover, the country is far less divided today geographically (even as it remains sharply divided by party) than it was for most of the nation's history.  Businesses, families, and culture are much more dispersed throughout the United States.  People move around within the United States (and thus may want their vote to count equally wherever they move) much more today than in the Eighteenth, Nineteenth and early Twentieth centuries.  Political scientists have documented (and, indeed, quantified) much more carefully today than ever before how current presidential elections tend to favor a few "swing" states, such that non-swing states that are largely ignored in the presidential election have selfish reasons today for moving, either individually or by coordinated action, to a national popular vote scheme.  And so forth.  For these reasons, there is nothing constitutionally suspicious about new ideas and innovations in the voting realm generally, or about the timing or origins of this one idea in particular.

The Rejection of a Direct National Election in 1787, the Fear of Majoritarianism Embraced by the Framers, and the Problem of Who the Relevant Framers Are

The other big component of Professor Williams's argument revolves around the decision in the Philadelphia Convention, at which the Constitution (including Article II) was drafted, to reject a proposal by Connecticut delegate Gouverneur Morris that the President be elected directly by the citizens of the United States.  Because this proposal was voted down, and based on a criticism of the proposal by delegate Charles Pinckney on the ground that it would unduly favor the populous states, Professor Williams argues that the framers conceived of Article II as prohibiting any system that overly focuses on or empowers a national majority.

There are numerous problems with this argument, none of which Professor Williams adequately anticipates or addresses.  First, the evidence he advances for this "expectation" on the part of the "framers" is very thin.  He does not cite any specific discussion in the Philadelphia Convention of the limits on state legislatures to pick electors on whatever basis they choose, and analyzes no evidence from the ratification debates in the states that bears in a specific or even general way on the question.  The "framers" were not simply the men who sat in Philadelphia who had conversations to which no one else was privy; the framers who count more in constitutional interpretation are the folks who read and understood the words that emerged from Philadelphia and decided to make them the "law of the land."

And the words of Article II on their face give states broad latitude to pick any kind of electors they want.  Surely that would have been the ordinary meaning attached to the phrase "in such manner as the legislature thereof may direct."  Under any variant of Scalian textualism/originalism, these words-absent some evidence that persons outside Philadelphia would have interpreted them differently-foreclose Professor Williams's argument.  (To be sure, subsequent amendments to the Constitution, like the First and Fourteenth Amendments, might limit the kinds of criteria that states may take into account in picking electors-prohibiting, e.g., racial and religious discrimination in elector selection-but these limits do not come from Article II, the provision on which Professor Williams relies.)

The Multiple Explanations for, and Consequences of, the Rejection of a Direct National Election at the Founding

Moreover, even focusing on the Philadelphia Convention alone, Professor Williams himself cites to other reasons-besides a deep-seated rejection of national majoritarianism-that explain some delegates' aversions to Morris's plan.  Some of those in Philadelphia rejected direct election because the voters (absent modern communications, transportation, or the advent of national parties) would lack adequate information on which to base their votes.  Other delegates expressed the related fear that voters would, lacking adequate information, simply vote for local favorite-son candidates.  Yet others voiced their concern not in terms of populous versus small states, but rather in terms of Northern versus Southern states; direct election would have enabled the North, with more voters, to abolish slavery, which would have been unacceptable to Southern states and have lead them to reject constitutional ratification.

None of these three objections (each of which or all of which might account for the rejection of Morris's proposal) is relevant today in the context of the NPV plan:  Voters today all across the country have adequate information to pick a President; a state basing its Electoral College selection decisions on the nationwide electorate is not favoring local, native-son, candidates but instead is casting its gaze at a non-parochial level; and (thankfully) slavery is no longer a salient legal or political feature of America.

And even if Professor Williams could show (and he doesn't) that the biggest force shaping Article II was distrust of majoritarianism, that would still not provide much support his ultimate conclusion.  Article II's drafters did reject imposing a nationally majoritarian regime on the states, but that is a far cry from saying they foreclosed  such a regime if that is what states (acting individually or collectively) want to do.  There is a parallel here to Article III of the Constitution, which reflects a fear that lower federal courts could end up displacing state courts.  This fear didn't leave the framers to either require or foreclose the creation of lower federal courts, but instead to leave the matter up to Congress.  At most, Article II does not require or foreclose states from looking to the national electorate, but rather leaves the matter up to the states themselves.

What About Other Moves in the Past Centuries Towards Majoritarianism?

Yet another damning counterargument to Professor Williams's thesis is that if NPV is too majoritarian to survive under Article II, why aren't all the other developments in the evolution of modern presidential election mechanics that have occurred over the past two centuries also unconstitutional?  The rise of political parties, the placement of major party nominees on ballots bearing party designations, and the advent of the short-form ballot all moved the country towards a system that facilitates a national popular vote-winner becoming President.  Indeed, by making it less likely that no candidate will lack a majority of electoral college votes on the first ballot, these devices virtually eliminate the prospect of an election being thrown into the House of Representatives, which (because under Article II each state would have one vote in the House) was the most important nonmajoritarian electoral device the framers expected would come into play often.  As a result, all these innovations moved the country away from nonmajoritarianism and in the direction of majoritarianism much more than the NPV plan does, which could be seen as trying merely to narrow an already small window of nonmajoritarianism that remains.

And if Professor Williams's rejoinder to this is that closing the last open slit in a window is qualitatively different (and worse) than moving it from wide open to almost closed, I would note that the NPV idea doesn't close the window entirely, for three reasons:  First, absent coordination, a state's decision to base its electors on the nationwide vote doesn't come close to guaranteeing that the President will be the national vote winner, so an individual state's decision to use the national tally as a basis for picking its electors cannot be said to guarantee a nationally majoritarian outcome.  Second, a state that adopts an NPV stance can always change its mind in subsequent elections, so the system isn't inalterably majoritarian.  And third, since electors in the Electoral College are, strictly speaking, independent and can't be coerced into voting in any particular way-even the way they themselves have pledged-there is no plan, short of constitutional amendment, that would entirely close the window on the possibility of nonmajoritarianism.

Indeed, the essential implausibility of Professor Williams's argument can be seen simply by focusing on the independence of the electors.  Imagine that an elector today from some very closely divided state, under the way things currently work, thought that the nation would erupt into civil war if the person who won the nationwide vote tally were to be denied the presidency.  Couldn't that free-agent elector take into account, under Article II, that specter of war in deciding how to cast his electoral college vote?  And if so, then why can't a state (and its legislature and people) choose to select electors who are inclined to have that mindset?

All of this brings me to a passage in Professor Williams's article that may reflect part of the problem with his approach.  He says that each state's electors must be "accountable to the people of that state" and that the electors must "reflect directly or indirectly the choice of each state's own electorate."  The reality, however, is that NPV complies with this requirement.  The people of those states who have joined NPV have (through their legislature, which is accountable to them) made their choice to focus on national voter popularity when they select their electors.  No one is forcing them to do so; to the contrary, we are respecting their (and no one else's) desires by respecting their commitment to NPV.  (And the problem, in Professor Williams's eyes, cannot be that the legislatures are committing to NPV without the ratification of the voters of NPV states, because Professor Williams would not accept NPV any more readily if states joined it by initiative, rather than through their legislatures. And indeed, Article II's reference to "legislature" may foreclose the initiative device here.)

The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states.  The NPV states aren't delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.

 

March 6, 2013

Are the Covered States “More Racist” than Other States?

By Chris Elmendorf and Doug Spencer. Cross-posted from the Election Law Blog.

During oral argument last week in Shelby County v. Holder, the constitutional challenge to Section 5 of the Voting Rights Act, Chief Justice Roberts asked, “[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?” Solicitor General Verrilli responded, “It is not, and I do not know the answer to that . . . .”

This post offers a preliminary answer to the Chief Justice’s question, using recent data. Our initial results suggest that the coverage formula of Section 5 does a remarkably good job of differentiating states according to the racial attitudes of their nonblack citizens.

There are essentially three schools of thought about how best to measure racial prejudice using survey questions. Some researchers favor explicit measures of prejudice (“old-fashioned racism” or stereotyping), based on agreement with statements like “blacks are less intelligent than whites” and “blacks are lazy.” Others favor symbolic measures of prejudice or “racial resentment,” based on questions about affirmative action and whether blacks have gotten “more than they deserve.” Still others favor measures of implicit or subconscious bias. For the results reported here we use explicit stereotyping, as it remains disputed whether racial resentment measures capture prejudice as opposed to conservatism, and it is uncertain whether implicit bias predicts political behavior.

We created a binary measure of stereotyping that roughly captures whether a person is more prejudiced toward blacks than is typical of nonblack Americans. Our data source is the 2008 National Annenberg Election Survey (NAES), which asked non-black respondents to rate their own racial group and blacks in terms of intelligence, trustworthiness, and work effort, on a scale of 0-100. On average respondents ranked their own group about 15 points above blacks on each trait. We coded respondents as holding “prejudiced” views with respect to blacks on a particular trait if the difference between their rating of their own racial group and their rating of blacks exceeded the national mean difference for the trait. To create an overall measure of prejudice for each respondent, we summed the number of traits on which the respondent was more prejudiced than the national mean. Finally, we converted this sum into a binary variable, coding as “prejudiced overall” those respondents who exceeded the national mean with respect to at least two of the three traits.[1]

To be clear, a respondent whom we have coded as “not prejudiced overall” may well be quite prejudiced. But the Chief Justice’s question—whether “citizens in the South are more racist than citizens in the North”—is a question about relative prejudice, and this is what we are trying to capture.

We provide two estimates of the proportion of adult, nonblack residents in each state who are “prejudiced overall.” The first is based on simple disaggregation of the large NAES dataset (N=19,325). This method should work pretty well for the largest states but may yield unreliable estimates for smaller states, which contribute relatively few respondents to the NAES sample. For the second estimate we use multilevel regression with post-stratification (MRP), a recently developed statistical technique that has been shown to yield remarkably accurate estimates of state-level public opinion. We model prejudice as a function of individual-level covariates (sex, race, age, and education) and a set of state-level predictors (black population, percent of blacks in poverty, segregation, and income inequality).

Using either technique we find a strong positive correlation between Section 5 “covered status” and anti-black prejudice, but with MRP the correlation is truly stunning:

The MRP model suggests that the six fully covered states in the South are, by our measure, six of the seven most prejudiced in the nation. The two fully covered states that rank lower on the list, Arizona and Alaska, are presumably covered for reasons other than discrimination against blacks (anti-Latino discrimination in Arizona, and anti-Native discrimination in Alaska).

We wish to emphasize that these are preliminary results only. Though our findings are not entirely unexpected, other ways of aggregating the NAES prejudice questions, or of modeling responses, may yield different rankings of the states (to say nothing of other ways of measuring prejudice). We will present additional results at the Midwest Political Science Association conference in April.

Suffice it to say for now that the coverage formula seems defensible under the standard implicit in the Chief Justice’s questioning. Or, to borrow a metaphor from Judge Williams of the D.C. Circuit, Congress appears to have “hit the bull’s eye throwing a dart backwards over its shoulder.”

Elmendorf is Professor of Law at UC Davis. Spencer is a doctoral student in Jurisprudence and Social Policy at UC Berkeley. Elmendorf contributed to an amicus brief on behalf of the respondents in Shelby County v. Holder.

March 1, 2013

The First of Many Expected Five-Four Rulings at the Supreme Court this Term: Clapper v. Amnesty International USA

From Justia's Verdict.

The Supreme Court this week handed down its first (but almost certainly not its last) 5-4 ruling of the Term.  The case, Clapper v. Amnesty International USA, involved a constitutional challenge to a law passed by Congress in 2008 that permits the federal government to undertake additional surveillance and information gathering with respect to persons outside the United States.  Because the five-member Court majority found that the plaintiffs lacked standing under Article III of the Constitution to mount the challenge, the Court never addressed the validity of Congress’s law.  But the case does, as I explain below, afford some insights into the law of standing, which continues to be an important doctrine with which anyone seeking to a raise constitutional challenge must reckon.

The Background of the Case and the Supreme Court’s Reasoning

In 1978, Congress passed the Foreign Surveillance Intelligence Act (FISA) to allow and to regulate certain electronic surveillance activities conducted by the federal government to gather foreign intelligence.  The statute set up certain procedures and certain tribunals through which the federal government has to go in order to be allowed to monitor and intercept electronic communications involving persons outside the United States.  Congress amended the FISA in 2008, adding to it a “new and independent source of intelligence collection authority, beyond that granted in the original FISA.”  The new authority came with limits, however: (1) the government must still obtain approval from a FISA court; (2) it must avoid targeting persons known to be in the U.S.; and (3) it must comply with the Fourth Amendment.

The day the 2008 amendments were made law, a group of plaintiffs filed suit seeking to block one of the new provisions on the ground that it violates the First Amendment, the Fourth Amendment, and various separation-of-powers principles.  The plaintiffs consist of lawyers, labor organizations, media groups and human rights advocates.  They say that they are injured by the 2008 law because their work requires that they undertake sensitive and sometimes private electronic communications with colleagues and other individuals located outside the United States.  The plaintiffs allege that some of the people with whom they need to communicate will likely be the target of federal intelligence-gathering activities under the FISA amendments, and that, as a result, the plaintiffs’ own communications will be improperly monitored or intercepted.  For this reason, plaintiffs say, the new law impedes their ability to do their work.  Indeed, plaintiffs assert, they have already ceased engaging in certain electronic communications because of a reasonable fear that these communications may be surveilled.

The federal district court ruled that the plaintiffs lacked standing to bring the suit.  The United States Court of Appeals for the Second Circuit reversed the district court, concluding that since the plaintiffs had shown an “objectively reasonable likelihood that their communications will be intercepted at some time in the future,” their claims should be adjudicated on the merits.  But five Justices of the Supreme Court disagreed.

Justice Alito, writing for himself, Chief Justice Roberts, and Justices Scalia, Kennedy and Thomas, observed that, to have standing to sue in federal court under Article III of the Constitution, a plaintiff must suffer suffer a concrete and particularized injury that is “actual or imminent” and “fairly traceable” to the challenged action.  To be “actual or imminent,” the majority said, the injury asserted must be “certainly impending.”  On the facts established, the majority reasoned, this standard was not satisfied, because there was too much uncertainty about whether the new provisions of FISA would ever end up subjecting the plaintiffs and their particular communications to any surveillance.  In particular, Justice Alito’s opinion argued, there was uncertainty as to: (1) whether the feds will ever target any of the particular non-U.S. persons with whom the plaintiffs communicate; (2) if the feds do target persons with whom the plaintiffs communicate, whether the feds will invoke the new FISA provisions (as distinguished from other possible legal bases); (3) whether, if the feds do invoke the new law, the FISA court will give its approval; (4) whether, if FISA court approval is given, the feds will succeed in monitoring or intercepting any communications (no mean feat technologically); and (5) whether, if the government does intercept any communications, the plaintiffs will happen to be parties to those particular communications.

Because of this “highly attenuated chain of possibilities,” said the majority, the plaintiffs’ claim that they will be injured because of the new FISA law is too speculative to afford them standing.  And as to the fact that plaintiffs say that they are already changing their practices today because of their non-paranoid fear of surveillance, the Court responded that such decisions were the choice of the plaintiffs themselves, and that they could not “manufacture” an injury that satisfies standing in circumstances where the government itself has not created an injury that is “certainly impending.”

Justice Breyer’s dissent, joined by Justices Ginsburg, Sotomayor and Kagan, argued that the plaintiffs’ injuries are not speculative given what “commonsense inference and ordinary knowledge of human nature tell us will happen.”  In particular, against the backdrop of the government’s track record, and in light of the fact that the government has the motive and (in light of the 2008 revisions) also the means to surveil the very non-U.S. communication partners with whom the plaintiffs communicate (some of whom are suspected of terrorism), the dissent found a “very high likelihood” that the plaintiffs would suffer injury.  And because the future always contains some uncertainty (such that metaphysical certainty cannot be the standard), a high likelihood of injury should satisfy the “certainly impending” or “imminent” standard.  Justice Breyer also asserted that the Court had, in many earlier cases, found standing to exist where the relevant injury was “far less certain” than it is in the present case.

The Lessons About Standing to Be Gleaned From Clapper

Clapper highlights many aspects of modern standing doctrine.  First, standing can be contentious and standing battles often have an ideological element.  Notice, here, that the Court not only divided five to four, but did so on the conventional “conservative/liberal (or moderate)” fault line.  In general, the Justices who tend to be more conservative in their approach to interpreting other aspects of the Constitution are also more conservative in construing the barriers that Article III imposes for people who wish to challenge government action.  By contrast, the less conservative Justices tend to be more generous when it comes to access to federal courts.  (To be sure, because standing doctrine is somewhat manipulable and can be used by various Justices for various reasons, this conservative-liberal breakdown does not always account for votes on standing.)

Second, Clapper illuminates two distinct but sometimes conflated aspects of the “imminent” injury standard.  Some might be inclined to think terms like “imminent” and “impending” are temporal in nature, and require that the alleged injury must be suffered in the immediate future.  But what is really important in standing is not when the injury will be incurred, but whether it will be incurred at all.  (Remember, for instance, the Affordable Care Act case, in which the challenged individual mandate would not take effect until 2014, and yet standing was not a barrier.)  The temporal dimension is not irrelevant; temporal distance can create more uncertainty about whether the alleged harm will in fact ever come about, because the longer the time between the present moment and the alleged moment of actual injury, the greater the opportunity for circumstances to change in a way that avoids the injury.  But the question ultimately is still how likely the injury is to be incurred, taking into account any time lag.  (For example, the fact that Congress could conceivably have repealed the Affordable Care Act after the 2012 election before the individual mandate kicked in did not incline the Court to deny standing in the summer of 2012.)

Third, a Justice’s assessment of uncertainty depends, as Justice Breyer points out, on how the Justice understands what “commonsense inference and ordinary knowledge of human nature tell us [about what] will happen.”  Predictions (and that’s what we’re talking about here) are always based on how one perceives and understands how the world and the actors in it operate.

Fourth, the predictions required in standing analysis are more complicated when they involve the actions of persons other than the plaintiff and the defendant.  In Clapper, for example, we need to predict not only what kinds of communications the plaintiffs actually plan to undertake and how aggressive the government will be in seeking to monitor them, but we also need to predict how permissive the FISA court will be, and how effective the technology experts will be in any surveillance that is authorized.  The presence of these third parties (the courts and the technology intermediaries) allows the various Justices to come out very differently on the bottom-line question of whether plaintiffs will be affected.

Fifth, standing analysis may tend to play out differently in different subject-matter contexts.  Justice Alito pointed out that the Court has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of political branches in the fields of intelligence gathering and foreign affairs.”  By contrast, many of the cases Justice Breyer adduced to show that standing was found even though there seemed to be some uncertainty about future events involved land-use and environmental effects. (For example, in one decision, standing was found to challenge the planned construction of a nuclear power plant, even though the ultimate completion of the plant and its environmental effects were not certain to occur.)

There may be a number of explanations for why standing analysis generates different results in different settings.  Perhaps the disinclination to find standing in foreign affairs cases reflects a kinship between standing doctrine and so-called “political question” doctrine (in which federal courts affirmatively decide to stay out of certain kinds of disputes, leaving them to the political branches, because judicial resolution would create distinctive problems of institutional usurpation, embarrassment, or confusion.)  Foreign affairs effects (unlike environmental effects) are often invoked in “political question” settings.  Or perhaps the ease with which standing can be obtained in land-use and environmental cases reflects the fact that there is a market value attached to real property.  As a result, we might be able to discern present-day injuries from (even uncertain) future events because the mere non-trivial possibility of those events can be shown to have implications for current property valuations.  There is no market for privacy rights the way there is for land; for that reason, it may be harder to convince a court to step in to protect those rights when the threat to them is serious but subject to meaningful uncertainty.

Sixth, Clapper reminds us that sometimes the Court’s denial of standing means that a particular kind of challenge may never be easily resolved by courts on the merits.  Justice Alito’s opinion repeats a line from an earlier case saying that the fact that if plaintiff lacks standing then no one has standing is not a reason to recognize standing.  And although Justice Alito adds that persons who are prosecuted using information gleaned by the 2008 FISA amendments may be able to challenge those new laws down the road, critics of America’s response to terrorism seem to think that such opportunities to have a court rule on the validity of the surveillance are unlikely to materialize.

Finally, Clapper shows that standing doctrine is very soft, and that the Court’s cases cannot easily be harmonized or lined up on any clear spectrum.  As Justice Breyer concedes, “the Court has recognized that the precise boundaries of [standing doctrine] are matters of ‘degree. . . not discernible by any precise test.’”  What this means is that we can continue to expect the Court to use standing as a device to regulate its docket and reach, or avoid, questions on the merits that it would rather, or rather not, decide.  We may see more of that this Term in the same-sex marriage cases, where the specific standing questions are different, but the flexibility of the standing doctrine is similar.

The Supreme Court this week handed down its first (but almost certainly not its last) 5-4 ruling of the Term.  The case, Clapper v. Amnesty International USA, involved a constitutional challenge to a law passed by Congress in 2008 that permits the federal government to undertake additional surveillance and information gathering with respect to persons outside the United States.  Because the five-member Court majority found that the plaintiffs lacked standing under Article III of the Constitution to mount the challenge, the Court never addressed the validity of Congress’s law.  But the case does, as I explain below, afford some insights into the law of standing, which continues to be an important doctrine with which anyone seeking to a raise constitutional challenge must reckon.

The Background of the Case and the Supreme Court’s Reasoning

In 1978, Congress passed the Foreign Surveillance Intelligence Act (FISA) to allow and to regulate certain electronic surveillance activities conducted by the federal government to gather foreign intelligence.  The statute set up certain procedures and certain tribunals through which the federal government has to go in order to be allowed to monitor and intercept electronic communications involving persons outside the United States.  Congress amended the FISA in 2008, adding to it a “new and independent source of intelligence collection authority, beyond that granted in the original FISA.”  The new authority came with limits, however: (1) the government must still obtain approval from a FISA court; (2) it must avoid targeting persons known to be in the U.S.; and (3) it must comply with the Fourth Amendment.

The day the 2008 amendments were made law, a group of plaintiffs filed suit seeking to block one of the new provisions on the ground that it violates the First Amendment, the Fourth Amendment, and various separation-of-powers principles.  The plaintiffs consist of lawyers, labor organizations, media groups and human rights advocates.  They say that they are injured by the 2008 law because their work requires that they undertake sensitive and sometimes private electronic communications with colleagues and other individuals located outside the United States.  The plaintiffs allege that some of the people with whom they need to communicate will likely be the target of federal intelligence-gathering activities under the FISA amendments, and that, as a result, the plaintiffs’ own communications will be improperly monitored or intercepted.  For this reason, plaintiffs say, the new law impedes their ability to do their work.  Indeed, plaintiffs assert, they have already ceased engaging in certain electronic communications because of a reasonable fear that these communications may be surveilled.

The federal district court ruled that the plaintiffs lacked standing to bring the suit.  The United States Court of Appeals for the Second Circuit reversed the district court, concluding that since the plaintiffs had shown an “objectively reasonable likelihood that their communications will be intercepted at some time in the future,” their claims should be adjudicated on the merits.  But five Justices of the Supreme Court disagreed.

Justice Alito, writing for himself, Chief Justice Roberts, and Justices Scalia, Kennedy and Thomas, observed that, to have standing to sue in federal court under Article III of the Constitution, a plaintiff must suffer suffer a concrete and particularized injury that is “actual or imminent” and “fairly traceable” to the challenged action.  To be “actual or imminent,” the majority said, the injury asserted must be “certainly impending.”  On the facts established, the majority reasoned, this standard was not satisfied, because there was too much uncertainty about whether the new provisions of FISA would ever end up subjecting the plaintiffs and their particular communications to any surveillance.  In particular, Justice Alito’s opinion argued, there was uncertainty as to: (1) whether the feds will ever target any of the particular non-U.S. persons with whom the plaintiffs communicate; (2) if the feds do target persons with whom the plaintiffs communicate, whether the feds will invoke the new FISA provisions (as distinguished from other possible legal bases); (3) whether, if the feds do invoke the new law, the FISA court will give its approval; (4) whether, if FISA court approval is given, the feds will succeed in monitoring or intercepting any communications (no mean feat technologically); and (5) whether, if the government does intercept any communications, the plaintiffs will happen to be parties to those particular communications.

Because of this “highly attenuated chain of possibilities,” said the majority, the plaintiffs’ claim that they will be injured because of the new FISA law is too speculative to afford them standing.  And as to the fact that plaintiffs say that they are already changing their practices today because of their non-paranoid fear of surveillance, the Court responded that such decisions were the choice of the plaintiffs themselves, and that they could not “manufacture” an injury that satisfies standing in circumstances where the government itself has not created an injury that is “certainly impending.”

Justice Breyer’s dissent, joined by Justices Ginsburg, Sotomayor and Kagan, argued that the plaintiffs’ injuries are not speculative given what “commonsense inference and ordinary knowledge of human nature tell us will happen.”  In particular, against the backdrop of the government’s track record, and in light of the fact that the government has the motive and (in light of the 2008 revisions) also the means to surveil the very non-U.S. communication partners with whom the plaintiffs communicate (some of whom are suspected of terrorism), the dissent found a “very high likelihood” that the plaintiffs would suffer injury.  And because the future always contains some uncertainty (such that metaphysical certainty cannot be the standard), a high likelihood of injury should satisfy the “certainly impending” or “imminent” standard.  Justice Breyer also asserted that the Court had, in many earlier cases, found standing to exist where the relevant injury was “far less certain” than it is in the present case.

The Lessons About Standing to Be Gleaned From Clapper

Clapper highlights many aspects of modern standing doctrine.  First, standing can be contentious and standing battles often have an ideological element.  Notice, here, that the Court not only divided five to four, but did so on the conventional “conservative/liberal (or moderate)” fault line.  In general, the Justices who tend to be more conservative in their approach to interpreting other aspects of the Constitution are also more conservative in construing the barriers that Article III imposes for people who wish to challenge government action.  By contrast, the less conservative Justices tend to be more generous when it comes to access to federal courts.  (To be sure, because standing doctrine is somewhat manipulable and can be used by various Justices for various reasons, this conservative-liberal breakdown does not always account for votes on standing.)

Second, Clapper illuminates two distinct but sometimes conflated aspects of the “imminent” injury standard.  Some might be inclined to think terms like “imminent” and “impending” are temporal in nature, and require that the alleged injury must be suffered in the immediate future.  But what is really important in standing is not when the injury will be incurred, but whether it will be incurred at all.  (Remember, for instance, the Affordable Care Act case, in which the challenged individual mandate would not take effect until 2014, and yet standing was not a barrier.)  The temporal dimension is not irrelevant; temporal distance can create more uncertainty about whether the alleged harm will in fact ever come about, because the longer the time between the present moment and the alleged moment of actual injury, the greater the opportunity for circumstances to change in a way that avoids the injury.  But the question ultimately is still how likely the injury is to be incurred, taking into account any time lag.  (For example, the fact that Congress could conceivably have repealed the Affordable Care Act after the 2012 election before the individual mandate kicked in did not incline the Court to deny standing in the summer of 2012.)

Third, a Justice’s assessment of uncertainty depends, as Justice Breyer points out, on how the Justice understands what “commonsense inference and ordinary knowledge of human nature tell us [about what] will happen.”  Predictions (and that’s what we’re talking about here) are always based on how one perceives and understands how the world and the actors in it operate.

Fourth, the predictions required in standing analysis are more complicated when they involve the actions of persons other than the plaintiff and the defendant.  In Clapper, for example, we need to predict not only what kinds of communications the plaintiffs actually plan to undertake and how aggressive the government will be in seeking to monitor them, but we also need to predict how permissive the FISA court will be, and how effective the technology experts will be in any surveillance that is authorized.  The presence of these third parties (the courts and the technology intermediaries) allows the various Justices to come out very differently on the bottom-line question of whether plaintiffs will be affected.

Fifth, standing analysis may tend to play out differently in different subject-matter contexts.  Justice Alito pointed out that the Court has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of political branches in the fields of intelligence gathering and foreign affairs.”  By contrast, many of the cases Justice Breyer adduced to show that standing was found even though there seemed to be some uncertainty about future events involved land-use and environmental effects. (For example, in one decision, standing was found to challenge the planned construction of a nuclear power plant, even though the ultimate completion of the plant and its environmental effects were not certain to occur.)

There may be a number of explanations for why standing analysis generates different results in different settings.  Perhaps the disinclination to find standing in foreign affairs cases reflects a kinship between standing doctrine and so-called “political question” doctrine (in which federal courts affirmatively decide to stay out of certain kinds of disputes, leaving them to the political branches, because judicial resolution would create distinctive problems of institutional usurpation, embarrassment, or confusion.)  Foreign affairs effects (unlike environmental effects) are often invoked in “political question” settings.  Or perhaps the ease with which standing can be obtained in land-use and environmental cases reflects the fact that there is a market value attached to real property.  As a result, we might be able to discern present-day injuries from (even uncertain) future events because the mere non-trivial possibility of those events can be shown to have implications for current property valuations.  There is no market for privacy rights the way there is for land; for that reason, it may be harder to convince a court to step in to protect those rights when the threat to them is serious but subject to meaningful uncertainty.

Sixth, Clapper reminds us that sometimes the Court’s denial of standing means that a particular kind of challenge may never be easily resolved by courts on the merits.  Justice Alito’s opinion repeats a line from an earlier case saying that the fact that if plaintiff lacks standing then no one has standing is not a reason to recognize standing.  And although Justice Alito adds that persons who are prosecuted using information gleaned by the 2008 FISA amendments may be able to challenge those new laws down the road, critics of America’s response to terrorism seem to think that such opportunities to have a court rule on the validity of the surveillance are unlikely to materialize.

Finally, Clapper shows that standing doctrine is very soft, and that the Court’s cases cannot easily be harmonized or lined up on any clear spectrum.  As Justice Breyer concedes, “the Court has recognized that the precise boundaries of [standing doctrine] are matters of ‘degree. . . not discernible by any precise test.’”  What this means is that we can continue to expect the Court to use standing as a device to regulate its docket and reach, or avoid, questions on the merits that it would rather, or rather not, decide.  We may see more of that this Term in the same-sex marriage cases, where the specific standing questions are different, but the flexibility of the standing doctrine is similar.

- See more at: http://verdict.justia.com/2013/03/01/the-first-of-many-expected-five-four-rulings-at-the-supreme-court-this-term#sthash.aOxzrASN.dpuf