Harriet Miers tried. She tried to reassure conservatives in her written responses to the Senate judiciary committee, and not only by handing over evidence that in the past she supported a near-total constitutional ban on abortion. Miers also signaled that she supports another fond hope of the right—shutting the doors of the federal courthouse to annoying plaintiffs, like the ones who don’t like Ten Commandments displays in government buildings or clear-cutting in government forests. On the subject of raising the bar for the sorts of cases to be heard in a court, Miers was tapping out signals as furiously as John Roberts did. Maybe more furiously. But code gets the desired message across only when the receivers trust the sender.
In the last of 28 questions it posed to Miers a few weeks ago, the Senate Judiciary Committee asked her to “discuss your views” about various criticisms of “judicial activism.” This isn’t one that Sens. Arlen Specter and Patrick Leahy testily sent back for a do-over yesterday, because Miers diligently answered. She started with a platitude: “The role of the judiciary in our system of government is limited.” But then she hit the nail harder: She explained that the federal district judge for whom she once clerked, Joe Estes, took pains to ensure that he stayed well within a federal court’s designated limits. Estes’ “first task—and therefore mine in assisting him—in every case before him was to examine whether the case was properly in court,” Miers wrote. “Was there a party with standing? Did subject matter jurisdiction exist? Was venue proper?” If the answer to any of these questions was no, she continued, “the case was dismissed promptly.” Summarizing the lesson she apparently took away from Estes’ instruction, she concluded: ” ‘Judicial activism’ can result from a court’s reaching beyond its intended jurisdiction.”
Worrying over standing (can this plaintiff bring this case?) and subject-matter jurisdiction (do the federal courts have the authority to hear a case?) is movement-conservative code for making it harder for plaintiffs in the political minority—atheists, tree-huggers—to throw a wrench into the work of legislatures by charging that the lawmakers have run afoul of the Constitution. (As this post on Volokh Conspiracy points out, venue is a bit of a misnomer here, since a case that’s filed in the wrong “venue,” or place, can presumably be sent somewhere else immediately rather than dismissed outright. Chalk that one up to the growing list of Miers’ little legal errors.) If no one has standing to sue to take down a Ten Commandments monument, then you can pretty much cross the Establishment Clause out of your copy of the Constitution. Which is convenient—if you don’t like what it says about separating church from state.
The Warren Court didn’t fuss much about who had standing to challenge government actions. But the Burger Court started to and the Rehnquist Court followed along. In a 1984 case, Justice Sandra Day O’Connor set out a test for standing that basically amounts to this: The plaintiff has to show she has suffered a “personal injury” that’s the defendant’s fault, and that a court can redress by giving the plaintiff what she wants (usually an injunction or damages). Usually this means that one person can’t sue to vindicate the rights of somebody else. And it also means that no one can get into court just because they’re curious, say, about whether it’s constitutional to coercively interrogate foreign detainees like the ones being held in Guantanamo Bay. No abstract questions allowed. Lack of standing is why the Supreme Court sent Michael Newdow packing with his Pledge of Allegiance claims.
In the United States, the justification for a limited approach to standing is that the Constitution allows courts to decide only “cases” and “controversies.” If the courts were to overstep those bounds by wading into any dispute anyone asked them to resolve, they’d be treading onto the turf of the legislature and the executive and blurring the lines set by the framers for separation of powers. Other countries—Germany, France, South Africa, Israel—think about standing differently: In various ways, these countries’ courts let people petition them to redress harms and solve even problems that don’t directly affect the petitioners, apparently without posing a dire threat to democracy.
That is not a path down which conservatives want to take a single step. In the 1992 case Lujan v. Defenders of Wildlife, Justice Antonin Scalia ruled for the court that several environmental groups lacked standing to challenge a regulation that pulled back on enforcing the Endangered Species Act for U.S. actions taken abroad. The green groups argued that they were trying to prevent an increase in the rate of extinction worldwide; individual members submitted statements about the harm they’d suffer when they visited Egypt to see the Nile crocodile, for example, to no avail. Scalia told them to get lost. But he didn’t get to go as far as he wanted to, in terms of making life difficult for future plaintiffs, because Justices Anthony Kennedy and David Souter didn’t sign on to his entire opinion. So from the point of view of the right, there’s plenty more door-slamming to do.
Now Miers seems to be saying she could be down for Scalia’s rumble. Why is this message failing to transmit to its intended receivers? Because she’s got nothing in her record to back up the read-between-the-lines she penned for the Senate. When John Roberts talked about limiting the role of the federal judiciary, the right knew that as a government lawyer in the 1980s, he’d favored cutting off access to courts in nine different ways. There was lots of nice paper to chew through, as Dahlia Lithwick recounted here. As important, Roberts had behind him decades of lunches and handshakes with Washington conservatives. They knew him and they knew he spoke their language. Miers is the president’s friend, not a self-established insider. Conservatives aren’t sure her code is their code. And they seem less and less inclined to give her the benefit of the doubt.