Schiavo and Gilmore
althouse at wisc.edu
Mon Mar 21 10:11:37 PST 2005
Thanks for bringing up Gilmore. I wrote an article on the subject in
1991 called "Standing in Fluffy Slippers" (77 Va. L. Rev. 1177). Here's
the relevant passage from that article : "In the Gilmore case, the
Court did not even discuss whether Bessie Gilmore had standing because
of the injury the state would inflict upon her if it killed her son; it
discussed only Gary Gilmore's own injury, which made him the sole
decisionmaker as to whether to appeal his case, so long as he had
enough competence to make a 'knowing and intelligent waiver.'"
I believe most/all commentators think that the mother would meet the
injury in fact requirement. Anyone on the list think not?
So, I don't think Gilmore is an obstacle as to the Article III point.
On Mar 21, 2005, at 11:47 AM, Andrew Koppelman wrote:
> There hasn't been much discussion of the bill's conferral of standing
> on the parents, but there is some authority that suggests that you
> haven't suffered Article III injury when your child is killed. Four
> judges (Burger, Powell, Stevens, and Rehnquist) expressed that
> position in Gilmore v. Utah, 429 US 1012 (1976), where Bessie Gilmore
> sought to challenge the legality of her son Gary's upcoming execution.
> Only Blackmun was willing to say that the question of Bessie's
> standing was "not insubstantial." (The per curiam opinion for the
> Court did not expressly reach the issue.) It is odd to say that
> Bessie's injury is not substantial, but that's the view that got the
> most votes in Gilmore.
> This case of course addresses the core issue of constitutional
> standing, not the prudential prong, so Congress can't change it.
> In Gilmore's case, he was held to be comptent, so his mother couldn't
> petition as next friend. No one alleges that Terry Schiavo is
> competent, so perhaps her parents can sue in next friend capacity. Is
> there unlimited power in Congress to confer next friend status? If
> there is, that would appear to suggest enormous discretion in Congress
> to get around Article III limitations by conferring next friend status
> on anyone on whom it wishes to confer third party standing.
> How much of an obstacle is Gilmore to the Schiavos' claim?
> Andrew Koppelman
> Professor of Law and Political Science
> Northwestern University School of Law
> 357 East Chicago Avenue
> Chicago, IL 60611-3069
> (312) 503-8431
> mailto:akoppelman at northwestern.edu
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