In All Four Big Cases, Supreme Court's Decision Could Be Not To Decide

A procedural question about whether the right party is before the court could be a hurdle for the pending Supreme Court cases involving the Defense of Marriage Act, California's Proposition 8, affirmative action policies, and the Voting Rights Act.

WASHINGTON — Although the country is waiting on the Supreme Court's decisions in four major cases — involving California's Proposition 8, the Defense of Marriage Act, affirmative action policies, and the Voting Rights Act — the court's decision in all four cases could be not to decide.



Standing is a part of the court's jurisdiction, a determination by the court that the party bringing a lawsuit or an appeal has a real interest in the litigation, in terms of a substantial harm or burden that they could face depending on the lawsuit's outcome. Basically: "Do they have a right to be there?" Standing doctrine is a result of the Constitution's requirement that the federal courts only hear an actual "case" or "controversy."

In the challenge to DOMA's federal definition of marriage — United States v. Windsorthe court has asked whether the government's decision to stop defending the law meant the court no longer had the ability to consider the case and whether the five-member House Bipartisan Legal Advisory Group — led by a 3-2 Republican majority — had standing to step in to handle the law's defense.

In the Hollingsworth v. Perry challenge to Proposition 8, the question about standing is whether the proponents of the initiative — private citizens who advanced the initiative back in 2008 — can bring an appeal of the case when the state defendants chose not to do so. Although the 9th Circuit Court of Appeals held that they could, the justices asked to take another look at the issue.

In the affirmative action case, Fisher v. University of Texas at Austin, some have questioned whether Abigail Fisher is a suitable plaintiff. According to the university, as noted at SCOTUSblog, Fisher "wouldn't have been admitted to the university's freshman class under any circumstances, regardless of her race," because "[h]er academic credentials ... just weren't strong enough."

Finally, in the Shelby County v. Holder case addressing the constitutionality of Section 5 of the Voting Rights Act, which requires state and local political jurisdictions to get federal government approval of changes to voting procedures, some justices raised the question at oral argument — consigned to a footnote in the briefs — about whether Shelby County, Miss., had standing to bring the lawsuit because, as Justice Elena Kagan noted, "Under any formula that Congress could devise [for coverage under Section 5], it would capture Alabama."

Justices allotted extra time for the standing and jurisdiction issues in the DOMA case, but did not appear overly concerned about the questions raised by Harvard Law School professor Vicki Jackson, who the justices asked to brief the court on the issues. They seemed much more preoccupied with the issue, however, when hearing arguments the day before that in the Proposition 8 case.

University of Alabama School of Law professor Heather Elliott — a former clerk to Justice Ruth Bader Ginsburg and expert on standing doctrine — told BuzzFeed that the questions about whether there is standing in the DOMA and Proposition 8 cases "reveal[s] the inadequacy of the standing doctrine in determining the Supreme Court's jurisdiction."

Elliott noted that, while there are these questions raised now about who can appeal the cases, "the [trial] courts unquestionably had jurisdiction over the initial cases," and, as such, their decisions would stand even if the Supreme Court decides the parties appealing the cases now lack standing.

"In Windsor, the lower court struck down a federal statute; in Perry, a federal court struck down an initiative-created state constitutional amendment. If the Supreme Court exists to do anything, it should exist to review these kinds of decisions," Elliott told BuzzFeed. "If the standing doctrine says they are not 'cases,' it is the doctrine that is wrong."

In the other two cases, the standing question relates not to who is bringing the appeal, but whether the initial plaintiff bringing the lawsuit in the first place had standing. The standing issue was seen by many as an attempt by more liberal justices to avoid a ruling striking down Section 5 of the Voting Rights Act, and it has remained at the margins of discussions about the case's possible outcomes. The justices could fall back on the standing questions in Fisher, however, particularly if the eight justices hearing the case — excluding Kagan, who had been involved in the case previously when in the Obama administration — deadlock 4-4.

"If the Court finds that the plaintiffs lacked standing, it can vacate the lower court decisions, leaving the legal landscape as it was before the cases were filed," Elliott wrote. "Nevertheless, I think the Shelby County case raises problems similar to those I see with the standing analysis in Windsor and Perry: the question is, what role should the Supreme Court play in our system of government? It should review decisions of lower courts striking down federal statutes (Windsor) and state laws (Perry). It probably also should review cases involving laws that affect the working of the body politic — laws such as the Voting Rights Act."

Elliott was not so sure about the affirmative action case, writing, that the case "does not raise the same kinds of systemic issues: If the Supreme Court holds that Ms. Fisher lacks standing, it will not affect the workings of our democracy or the federal-state relationship."

The justices are scheduled to release more of the 11 remaining decisions at 10 a.m. Monday.