My Ox or Yours?
posted by Howard Wasserman
Dave’s post about the nonsense lawsuit against Barack Obama over his citizenship and presidential eligibility reminds me that procedure is fun because people’s normative (political, ideological) views of procedural rules often change unexpectedly when those rules work suddenly work against their interests. Consider, for example, the range of jurisdictional doctrines that limit public-law litigation as an institution for social and political change. These are beloved by political and judicial conservatives as ways to reign-in out-of-control activist judges, greedy lawyers, and disgruntled citizens trying to achieve through the courts what they cannot achieve through the popular political process. Andy Siegel has the best discussion of the Rehnquist’s Court’s opposition to the institution of litigation. But views shift suddenly when those doctrines block conservatives from using litigation in the same way.
The lawsuit against Obama is Exhibit A. As Dave notes, motions to dismiss for lack of standing have been filed and almost certainly will be granted, because Berg has nothing more than the undifferentiated interest of the public as a whole in a remedy for any violation that may be found. But one commenter on Dave’s post argues that the plaintiff obviously has a personal stake in the case, because Obama would become his president, and that a standing defense simply is the “standard dodge.” I would guess that many conservatives might echo that point. Of course, the rule against citizen standing is what prevents anti-war activists from suing to stop members of Congress from holding commissions in the Armed Forces Reserves or from forcing the CIA to fully report its expenditures to the public.–all outcomes that judicial and political conservatives tend to support.
Exhibit B is the federal lawsuit filed by the Ohio Republican Party against Ohio Secretary of State Brunner, alleging that Secretary Brunner violated the Help America Vote Act (”HAVA”) by not providing information to county election officials to allow for comparisons of registration roles and the purging of names that do not match. The Supreme Court reversed the issuance of a preliminary injunction, rejecting the GOP’s claim on the merits because HAVA does not contain the necessary explicit rights-creating language that establishes a privately enforceable statutory right (either through the statute itself or through § 1983). Again, the doctrine narrowing the types of statutes that create privately enforceable rights has been established in the context of halting a challenge to English-language requirements to obtain a drivers’ license or preventing a student from obtaining damages when his educational records were released in violation of federal privacy laws–a series of decisions applauded by conservatives wanting to stop “activist judges.” Michael Dorf has a good discussion of the politics of the case.
So does the political and ideological valence of these doctrines change when a different ox is being gored? Dorf applauds the unanimous Court’s ability to ignore (implicitly, unlike Bush v. Gore) the ideological interests and positions of the parties and apply the private-right-of-action doctrine in its established narrow scope. But if the response among some conservative commentators to the Obama suit (with the notion that Obama hiding something by defending on standing grounds) is any indication, there seems to be surprise and anger when these doctrines suddenly work against their interests.
October 24, 2008 at 8:08 am
Posted in: Uncategorized
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Responses (3)
Orin Kerr - October 24, 2008 at 9:17 am
Howard, are you suggesting that the test for what conservatives think is whether you can find one Internet commenter who writes something in one blog comment thread? Or is “Brett Bellmore” some sort of general spokesperson for conservatism?
Howard Wasserman - October 24, 2008 at 9:36 am
Neither. His comment was one (handy) example of a response, nothing more. I probably could find other examples, but it was 1 a.m. For others: Berg and McCarthy themselves, both of whom (at least by training) should know better. Some responses to the SCOTUS decision on conservative (political, not legal) blogs that I saw criticized the Court for falling back on technicalities and ignoring Brunner’s wrongdoing. Nor am remotely suggesting that all conservatives now want to dump the standing or private-right-of-action doctrines. I simply was making the (I thought non-controversial) point that, in these recent examples, doctrinal rules are being used against the political interests of the groups that tend to favor those rules. And sometimes that surprises people.
Brett Bellmore - October 24, 2008 at 12:47 pm
Actually, while my views are a bit complex, you could label me a libertarian without too much error. And I’d be fine with citizens being able to sue over black budgets and military commissions for elected officials. (Whether they’d *win* is a separate matter.) “Standing” is just one of the ways the judiciary avoids enforcing large portions of the Constitution.
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