In my latest FindLaw column I consider the possibility of backlash against Judge Walker's ruling in Perry v. Schwarzenegger. Although I basically agree with Judge Walker on the merits, I nonetheless remain quite nervous about this case getting to the SCOTUS too early: Either we'll lose and lock in a bad decision for a decade or more, or we'll win and risk a constitutional amendment. I don't say that backlash is inevitable but I do think the risk is real.
I note briefly in the column that Judge Walker had one way to avoid a decision on the merits: He could have held that there was no live case or controversy. The key state defendants declined to defend Prop 8, but Judge Walker permitted Prop 8's sponsors to intervene to do so. Yet that decision was dubious in light of Arizonans for Official English v. Arizona. Speaking for a unanimous Court there, Justice Ginsburg expressed "grave doubts" about the Article III standing of the sponsors of a ballot initiative to defend it when its constitutionality is challenged.
Here I want to express some of my own doubts about the Supreme Court's doubts. To translate, I think that the 9th Circuit was right in allowing a ballot initiative's sponsors to have standing to defend it when the relevant govt officials refuse to defend it. In the interest of full disclosure, I should say that I was a law clerk to 9th Cir Judge Stephen Reinhardt when he wrote the decision finding such standing, and about which Justice Ginsburg expressed her grave doubts.
I am not a big fan of ballot initiatives, but if a state permits them it is typically because of a preference for direct democracy over republicanism. The risk in the latter is that elected officials do not identify the common good sufficiently closely with public opinion. (Again, I think that this is a virtue of republicanism, but the premise of the ballot initiative process is contrary.) The ballot initiative process is available precisely because the People cannot always trust their elected representatives to carry out their will. Thus, when elected officials decline to defend a ballot initiative in court, they are directly frustrating the whole point of the ballot initiative process. Perhaps that is their prerogative, but if so, it makes sense for someone else to come in to defend the ballot initiative's constitutionality.
To my mind, this situation is closely analogous to the one the Court faced in Dickerson v. United States. There, the appeals court had sustained the defendant's conviction on the ground that a federal statute had overruled the Miranda decision. The Clinton Justice Dep't declined to defend the statute, and so the Supreme Court appointed a leading academic critic of Miranda to do so. True, there was a technical difference: The U.S. continued to be a party, arguing that even under Miranda, the defendant's conviction should be affirmed. But the only real contested issue in the SCOTUS--and the issue the Court took the case to decide--was the constitutionality of the statute.
Modern standing doctrine was more or less made up about 40 years ago. The underlying textual basis for it--the requirement that there be a "case" or "controversy"--seems readily satisfied by a contest pitting people who want to challenge a law's constitutionality against the sponsors of the ballot initiative that led to the law's enactment.
So to recap: I agree with Judge Walker on the merits; I also think that given the stakes, perhaps he should have tried to duck the merits; given what the SCOTUS said in Arizonans for Official English, he could have ducked by finding no standing for the sponsors of Prop 8; but I also think that the dicta in Arizonans for Official English is wrong (to the extent that mere grave doubts can be wrong).