Judges Standing Upside-Down by Linda Greenhouse
Something funny is happening on the way to the courthouse — and I don’t mean county clerks refusing to issue licenses for same-sex marriages. For decades, judicial conservatism has been defined at least in part as strict observance of the elements that make a case justiciable in federal court: a live controversy and a plaintiff with a concrete problem — as opposed to a general grievance — that can be fixed by a favorable ruling. I first learned about the doctrine of standing back when progressive law professors wrung their hands over how flagrantly justices like William H. Rehnquist were invoking standing and other jurisdictional barriers in order to close courthouse doors to meritorious lawsuits.
I suspect that Chief Justice Rehnquist, who died 10 years ago today, would be startled — or, given his sense of irony, at least amused — by how things have flipped. Now it’s conservative judges who rail against “the consequences of our modern obsession with a myopic and constrained notion of standing,” to quote Judge Janice Rogers Brown, one of the federal bench’s more outspoken conservatives. Judge Brown, who sits on the United States Court of Appeals for the District of Columbia Circuit, wrote an opinion last month in a case on the attempt by Joseph M. Arpaio, the notorious Phoenix sheriff, to block the Obama administration’s plan to defer deportation for young undocumented immigrants and for the undocumented parents of United States-born and lawful-resident children.
The D. C. Circuit panel, in an opinion by Judge Cornelia T. L. Pillard, threw out Sheriff Arpaio’s lawsuit for lack of standing. Judge Brown had to agree that the sheriff’s claim, which was that the president’s policies would lead more undocumented immigrants to go to or remain in Arizona and commit crimes there, couldn’t under existing precedents be the basis for a lawsuit. “We are aware of no decision recognizing such an attenuated basis for standing,” Judge Pillard wrote.
In her separate concurring opinion, Judge Brown bemoaned those precedents, which she said “effectively insulate immense swaths of executive action from legal challenge.” She continued: “Our relentless emphasis on the need to show a concrete injury caused by executive action and redressable by judicial relief makes it virtually impossible to challenge many decisions made in the modern regulatory state.”
Ah, the regulatory state. That’s the rub. Or is it, more precisely, the regulatory state in the Obama era that gets certain judges’ goat? Judge Brown used the phrase “the aggressive entrepreneurship of the executive,” preserving the veneer of nonpartisanship by not directly attaching the words to the incumbent chief executive. But her meaning was unmistakable: there oughtta be a way for us judges to rein in this runaway president.
http://www.nytimes.com/2015/09/03/opinion/judges-standing-upside-down.html?