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Key excerpts from the Proposition 8 ruling

Excerpts from Chief Justice Roberts’ majority opinion:

“The requirement of a “case” or “controversy” “is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.”

“In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. The presence of a disagreement, however sharp and acrimonious it may be, is insufficient . . . .”

Because “the District Court had not ordered them to do or refrain from doing anything,” the proposition backers “had no direct stake in the outcome of their appeal.”  “No matter how deeply committed petitioners may be to upholding Proposition 8 or how ‘zealous [their] advocacy,” post, at 4 (KENNEDY, J., dissenting), that is not a ‘particularized’ interest sufficient to create a case or controversy under Article III.”

“Petitioners contend that this case is different, because the California Supreme Court has determined that they are ‘authorized under California law to appear and assert the state’s interest’ in the validity of Proposition 8.”  “Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them. Unlike California’s attorney general, they are not elected at regular intervals—or elected at all. . . . . They are free to pursue a purely ideological commitment to the law’s constitutionality without the need to take cognizance of resource constraints, changes in public opinion, or potential ramifications for other state priorities.”

“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.”

Excerpts from Justice Kennedy’s dissenting opinion:

“The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied.”

“Having gone to great lengths to convince voters to enact an initiative, [proposition proponents] have a stake in the outcome and the necessary commitment to provide zealous advocacy.”

“The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials.”

“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. . . . Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure.”

“There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed. And rather than honor the principle that justiciability exists to allow disputes of public policy to be resolved by the political process rather than the courts, here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democratic election.”

“The Court’s opinion disrespects and disparages both the political process in California and the well-stated opinion of the California Supreme Court in this case. . . . The California Supreme Court’s opinion reflects a better understanding of the dynamics and principles of Article III than does this Court’s opinion.”

“In the end, what the Court fails to grasp or accept is the basic premise of the initiative process.  And it is this. 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.”

Recommended Citation: Kevin Russell, Key excerpts from the Proposition 8 ruling, SCOTUSblog (Jun. 26, 2013, 11:22 PM),