Schiavo and Gilmore

[Ann Althouse]

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.

Ann


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
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