"What Happens When You Stand For 2 Years."

"I didn’t develop any knee, foot, back, or hip pains. I don’t feel exhausted at the end of the day or week.... My posture improved. My neck and shoulders no longer pitch forward. My legs became more muscular. I no longer get back pain...."

I enjoyed reading that. You know I'm a big fan of my motorized sit/stand desk, and I need more reason to opt for the up position.

Somehow, this topic got me around to buying an Indo Board IndoFLO Balance Stimulator. It hasn't arrived yet, but I'll let you know how it works out. This video influenced me. (If you are younger/more athletic, consider this.)

Should respect for the initiative process have moved the Supreme Court to stretch the restraints of the standing requirement?

Chief Justice Roberts, writing for the Supreme Court majority in Hollingsworth v. Perry, says:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

There was some argument that there needed to be a way for the results of the state's initiative process to be defended when the state's elected officials didn't like those results, as happened with Prop 8. The dissenting opinion said the majority "disrespects and disparages" this political safeguard that is part of California law. The Chief's answer was the state can have its law, but it doesn't have power to change the federal law of standing that limits federal courts.

[T]he fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary.

The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers.

In other words, separation of powers beats federalism. Not always, but here, where the separation of powers is a matter of federal constitutional law, and the federalism interests are only policy concerns.

The dissenting opinion is written by Justice Kennedy and joined by Justices Thomas, Alito, and Sotomayor:

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.”...

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. 

Roberts's opinion acknowledges all that, but it's simply policy analysis, and federal standing doctrine has — for a long time — rejected arguments that come in the form of if these plaintiffs can't sue, an important legal issue cannot be raised.

I'm particularly unsympathetic to this argument in the context of needing to defend the results of the initiative process. Long ago, the Supreme Court had a case challenging the initiative process as a violation of the Article IV guarantee of a "Republican Form of Government" to every state. In that case, Pacific States Telephone & Telegraph v. Oregon (1911), the Court said it could not reach the substantive merits of the question because of the so-called "political question" doctrine — which, like standing, is a justiciability doctrine about the power of the federal courts.

It would be ironic if reverence for the initiative leveraged these plaintiffs past the normal limits on judicial power, since it was a limit on judicial power that prevented us from ever finding out whether lawmaking by initiative — rather than in a deliberative body of elected representatives — is unconstitutional.

Justice Kennedy ends his dissenting opinion saying:

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 a century. 

That's interesting political philosophy about democracy, but the people also made the federal Constitution, which is superior to state law, and which has that guarantee of a republican form of government. So let's not get too sentimental about direct democracy. If we want to get back to first principles, let's talk about republicanism.

(Here's Erwin Chemerinsky's article "Why Cases Under the Guarantee Clause Should Be Justiciable," which was part of a symposium at the University of Colorado Law School in 1994, back when there was a challenge to an initiative in Colorado that barred laws protecting gay people from discrimination. I was there too and wrote a response to Prof. Chemerinsky — here's my "Time for the Federal Courts to Enforce the Guarantee Clause?" — saying that if the Supreme Court felt motivated enough about this challenge, before it would change the justiability law about the Guarantee Clause, it would find the right it needed in the Equal Protection Clause. And that, by the way, is exactly what the Court proceeded to do, in Romer v. Evans — a case written by, of all people, Justice Kennedy.)

The jurisdiction questions in the same-sex marriage cases.

Explained in a layperson-friendly way by lawprofs:

The Supreme Court has many options in the Prop 8 case.

How many? Marty Lederman says he'd originally thought there were 5: 1. no standing, 2. uphold Prop 8 on the merits, 3. reject Prop 8 in a way that relates only to California, 4. reject Prop 8 in a way that would also require gay marriage in the 8 states that have civil unions for gay couples, and 5. find a constitutional right to same-sex marriage that would apply throughout the country. Now, he sees 2 more options: 6. dismiss the petition (decide it was a mistake to take the case at all), and 7. vacate  and remand for reconsideration in light of whatever it does in the DOMA case.

Lederman thinks you can't tell from the oral argument, in which it seemed that at least some of the Justices were struggling to try to figure out what to do, but he thinks 2, 3, 5, and 7 are unlikely and 6 is also pretty unlikely.

So what about 1 (standing)?

... Justice Kennedy, expressed concern that if the Court were to hold that the Proposition 8 proponents lack Article III standing because they are not agents of the state of California... such a ruling might invite executive officials in California to effectively “thwart the initiative process” (Justice Kennedy’s words), simply by refusing to appeal lower court rulings declaring that such initiatives are invalid....

And 4 (reaching the merits and covering 8 states)?

To be sure, Justice Kennedy stated that it would be “very odd” for California to in effect be “penalized” for being “more open to protecting same-sex couples than almost any State in the Union.”  To like effect, Justice Sotomayor said that there would be an “irony” if “States that do more [for same-sex couples] have less rights.”...

But that objection doesn’t quite capture the fundamental nature of the eight-state argument—namely, that it’s an underinclusiveness argument of the sort the Court often invokes to explain why a state’s defense of a law is inadequate. 

Actually, everything seems unlikely and unsatisfying... and yet there will be a decision. I note that there could be an outcome without any rationale commanding a majority. That should be considered the 8th possibility. The 8th option for Prop 8.

Justice Breyer makes the clearest argument for why there is standing in the DOMA case.

And Chief Justice Roberts takes a different tack. This part is about the bizarre situation in which President Obama and Eric Holder have decided that DOMA is unconstitutional, and they won't defend it in the Supreme Court, but they intend to continue applying it. As Roberts puts it: why doesn't the President "have the courage of his convictions" and stop enforcing DOMA — "rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice"?

"If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds..."

"... the combined effect would be to reaffirm America's democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question," writes lawprof and former federal judge Michael McConnell.

By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage — a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer — and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation's culture wars.

Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides.

If we welcome the Court's calming of our culture wars — if we believe calming culture wars is a longstanding part of judicial virtue — we ought to compare the benefits of determining once and for all that the choice of marital partner belongs in the hands of the individuals who enter these relationships.

Individual rights matter, and it is the Court's duty to say what they are. If there is no proper case before the Court — if there really is no standing — then the Court has the duty to shut up. But the Court should no more shrink from saying what rights are than it should strain to find them to be something other than what they are.

If the Court could demonstrate its capacity to live up to these duties and if we could believe in the accuracy of these announcements about the substance of our rights, then telling us what our rights are ought to have a calming effect. And yet even if the Court's reputation is so far gone that we can't believe its announcements anymore, the duty remains.

Maybe it won't be calming, but the notion that the Court must calm us, when it is a question of our rights, defies the meaning of rights.

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

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

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

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

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

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

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