Effect of the Newdow case on the precedential value of the Ninth Circuit decision

[Edward A Hartnett]

Howard Bashman observes, "What the Court should have done is state that the
Ninth Circuit's ruling with respect to Newdow's standing is reversed and
the Ninth Circuit's judgment on the merits is vacated with instructions to
dismiss."

Why might the Supreme Court have failed to do so?

One possibility is simple sloppiness.   Given the approaching end of the
term and the cases still pending, I certainly wouldn't rule this out.

Another possibility is that it assumed that the Court of Appeals would see
that this was obviously the way to implement its decision and could be
trusted to enter a judgment along the lines I previously suggested:  "The
judgment of the district court is vacated and the case is remanded with
instructions to dismiss the complaint for lack of jurisdiction."

David Cruz, however, has suggested to me off list that perhaps a lack of
prudential standing should result in dismissal for failure to state a
claim, rather than dismissal for lack of subject matter jurisdiction.

Some quick research (and certainly non-exhaustive) reveals some support for
treating prudential standing decisions this way.
                                                                            
 For example, in Wamble v. Bell, 538 F.Supp. 868(W.D.Mo. 1982), the court   
 wrote:                                                                     
                                                                            
                                                                            

"The label to be applied to motions regarding standing is discussed in A
Litigation Primer for Standing Dismissals, Garvey, 55 N.Y.U.L.Rev. 545
(1980). Garvey indicates that the constitutionally mandated concept of
standing, which is grounded in Art. III of the Constitution, is
jurisdictional and a dismissal motion based thereon should be made pursuant
to Rule 12(b)(1), i.e., lack of  subject matter jurisdiction. On the other
hand, standing challenges which rely on the prudential considerations
formulated by the United States Supreme Court in recent years, may turn "on
the nature and source of the claim asserted" and thus may be made in
accordance with Rule 12(b)(6), i.e., failure to state a claim. Id. at 564
(quoting Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2205, 45
L.Ed.2d 343 (1975))."

On the other hand, the Court of Appeals for the Second Circuit has stated
that "standing, . . . in both its constitutional and prudential dimensions,
is a prerequisite to federal subject matter jurisdiction."  Wight v.
Bankamerica Corp., 219 F.3d 79 (2nd Cir. 2000).

See also 13A Wright & MIller, 2004 Supp. at 101-02 ("The jurisdictional
character of standing has also led one court to conclude that an appellate
determination that a plaintiff lacks standing requires that all district
court pronouncements on the merits be vacated to ensure against preclusion
. . . .") (citing Walters v. Edge, 162 F.3d 430 (7th Cir. 1998)).

Thus a third reason for the decision to simply "reverse" presents itself:
it enabled the Supreme Court to avoid wrestling with the issue of whether a
dismissal for lack of prudential standing is a dismissal for lack of
subject matter jurisdiction.

As one of the many who think that current standing doctrine is nonsense and
that plaintiff's standing decisions are best understood as determinations
whether a particular person has a right of action, I would be happy to see
all standing decisions treated as non-jurisdictional.  However, I tend to
think that treating them that way undermines a major point of current
standing doctrine: to separate standing from the merits.
                                                                            
 Notice what would happen in Newdow if prudential standing were treated as  
 a matter for 12b6 rather than 12b1:  The Court of Appeals would implement  
 the Supreme Court's judgment, by _affirming_ the judgment of the district  
 court as to Newdow's claim.  On this view, then, the last word from the    
 court of appeals would an affirmance of the district court's dismissal.    
 Wouldn't that make it even clearer that its prior decision reversing the   
 district court on the merits was no longer of any force?                   
                                                                            
 Yet a fourth possibility -- completely speculative -- is triggered by      
 Howard Bashman's query about how the three Justices who reached the merits 
 would have reacted if the majority had been more precise in calling for    
 vacatur and dismissal.  He wonders whether those three might have called   
 "their opinions something other than concurrences in the judgment."  True  
 enough, but why would any of the Justices have cared if there were 5 votes 
 to require dismissal for lack of standing and 3 votes to find standing and 
 reverse the court of appeals (and affirm the district court) on the        
 merits?  But suppose that Stevens at one point had only 4 votes, with 4    
 finding standing and looking to reverse the court of appeals on the        
 merits?  At this point, with no majority for any single disposition,       
 someone or something would have to give -- unless the court were to affirm 
 even though not a single justice thought that affirmance was the right     
 result.  One way to give would be to elide the difference between the two  
 blocs, by calling the disposition simply "reversed."  Another would be for 
 a justice to switch his or her vote.  And perhaps one way to get a justice 
 to switch would be to couple the ellision with the (internal) observation  
 that if the court made public that it was split 4-4 on "no standing" vs.   
 "reverse on the merits," everyone could add Justice Scalia to the 4 to     
 reverse on the merits and predict the outcome of a future case.            
                                                                            
                                                                            
                                                                            


Ed Hartnett
Seton Hall