Former acting Solicitor General Walter Dellinger has argued numerous cases in the U.S. Supreme Court and has written and edited countless high court briefs. But until this month, he never was a client in a Supreme Court case.
For his debut as an amicus party, Dellinger has picked one of the term’s highest profile cases: Hollingsworth v. Perry, the same-sex marriage challenge involving California’s Proposition 8.
His counsel of record is his former O’Melveny & Myers partner, Irv Gornstein, now executive director of the Supreme Court Institute at Georgetown University Law Center. Gornstein will be assisted by Jonathan Hacker, chair of O’Melveny’s Supreme Court and Appellate Practice.
"I actually signed a retention letter with my own law firm," said Dellinger, who chuckled at the oddity of the situation. There is nothing odd, however, about the issue in the case that has seized Dellinger’s attention.
"I have argued for standing limits for 25 years," he said. "I’ve always had the view standing is very important to confine the judiciary to its proper role of deciding cases and not simply having some temple in which to proclaim constitutional rules. There need to be real parties with a real stake in the outcome."
In the Perry case, the justices have ordered the parties to brief and argue whether the proponents of Proposition 8a referendum banning same-sex marriages—have Article III standing to defend it, even though California officials refused to do so in the lower courts. The Prop 8 proponents are represented by Charles Cooper of D.C.’s Cooper & Kirk, and the Perry challengers’ counsel are Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner.
After the district court decision in the Perry case and the Supreme Court’s grant of review, Dellinger wrote articles for Slate arguing that the Prop 8 proponents lacked a personal stake in the litigation’s outcome and that lack of standing ultimately decides the whole case.
"Those pieces attracted the attention of the people organizing the amicus effort [in the Supreme Court], including the city of San Francisco which asked for a standing brief," said Dellinger. "Irv separately proposed an amicus brief on standing. The original plaintiffs can and will argue there is no standing. Chuck Cooper will argue there is standing. There is so much to discuss in the briefs in this case, they really don’t have sufficient space to fully address it."
Dellinger faced a similar issue in 1996 when he was acting solicitor general. In Arizonans for Official English v. Arizona, the justices did not reach the merits of a federal constitutional challenge to a state constitutional provision declaring English the state’s official language, but held the dispute moot. In her opinion for the Court, Justice Ruth Bader Ginsburg wrote that the Court had never "identified initiative proponents as Article III qualified defenders of the measures they advocated." In declining to resolve that issue, she added, the Court had "grave doubts" that those proponents had standing to pursue appellate review in the case.
"I filed the government’s amicus brief in Arizonans for Official English," Dellinger recalled. "The United States argued that referendum sponsors did not have standing to challenge a district court decision in the Ninth Circuit. There were so many jurisdictional flaws in that case, the Court did not need to reach that issue."
The standing question in the Prop 8 case offers the justices an off ramp to a merits ruling, he said.
"I think it’s important in this case that if the Court is standing at the brink of a decision they are not prepared to make, they consider seriously whether there is actually a real case and controversy since state officials did not decide to defend Prop 8," added Dellinger.
The Dellinger amicus brief and other amicus briefs opposing standing in Perry are due Feb. 28.
Marcia Coyle can be contacted at firstname.lastname@example.org.