Breyer: SCOTUS Could Rely on Lodged Affidavit To Prove Standing; Scalia Dissents

March 25th, 2015

During the standing debate over King v. Burwell, some argued that the challengers should file an affidavit with the Court to prove the plaintiffs still have standing. Was this even possible? In Alabama Legislative Black Caucus v. Alabama, Justice Breyer found that the Caucus had standing. But in doing so, he observed that if there were any doubts, the Court could rely on lodged affidavits parties to prove standing.

To be sure, the District Court had an independent obli- gation to confirm its jurisdiction, even in the absence of a state challenge. See post, at 4–5 (SCALIA, J., dissenting). But, in these circumstances, elementary principles of procedural fairness required that the District Court, rather than acting sua sponte, give the Conference an oppor- tunity to provide evidence of member residence. Cf. Warth v. Seldin, 422 U. S. 490, 501–502 (1975) (explaining that a court may “allow or [r]equire” a plaintiff to supplement the record to show standing and that “[i]f, after this opportu- nity, the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed” (emphasis added)). Moreover, we have no reason to believe that the Conference would have been unable to provide a list of members, at least with respect to the majority-minority districts, had it been asked. It has filed just such a list in this Court. See Affidavit of Joe L. Reed Pursuant to this Court’s Rule 32.3 (Lodging of Conference affidavit listing members residing in each majority- minority district in the State); see also Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 718 (2007) (accepting a lodged affidavit in similar circumstances). 

Rule 32.3 of the Court provides ways for parties to “lodge non-record material” with the Court:

3. Any party or amicus curiae desiring to lodge non-rec­ ord material with the Clerk must set out in a letter, served on all parties, a description of the material proposed for lodg­ ing and the reasons why the non-record material may prop­ erly be considered by the Court. The material proposed for lodging may not be submitted until and unless requested by the Clerk.

The Chief Justice cited this provision in Parents Involved to show that the members of the group still had standing:

This argument is unavailing. The group’s members have children in the district’s elementary, middle, and high schools, App. in No. 05–908, at 299a–301a; Affidavit of Kathleen Brose Pursuant to this Court’s Rule 32.3 (Lodging of Petitioner Parents Involved), and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the high schools of their choice when they apply for those schools in the future,” App. in No. 05–908, at 30a.

Justice Scalia, in his dissent, responds forcefully to this suggestion, claiming that Parents Involved concerned organizational standing, while the Caucus is showing individual standing:

The Court points to Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 718 (2007), as support for its decision to sandbag Alabama with the Democratic Conference’s out-of-time (indeed, out- of-court) lodging in this Court. The circumstances in that case, however, are far afield. The organization of parents in that case had established organizational standing in the lower court by showing that it had members with children who would be subject to the school district’s “integration tiebreaker,” which was applied at ninth grade. Brief for Respondents, O. T. 2006, No. 05–908, p. 16. By the time the case reached this Court, however, the youngest of these children had entered high school, and so would no longer be subject to the challenged policy. Ibid. Accord- ingly, we accepted a lodging that provided names of addi- tional, younger children in order to show that the organi- zation had not lost standing as a result of the long delay that often accompanies federal litigation. Here, by con- trast, the Democratic Conference’s lodging in the Supreme Court is its first attempt to show that it has members in the majority-minority districts. This is too little, too late.

I couldn’t read this without thinking about King v. Burwell. At this point, I imagine the Justices (RBG excepted) are satisfied that at least one Plaintiff in King v. Burwell has standing. But the Court may be putting litigants on notice in the future that any doubts about standing could be resolved under Rule 32.3. Rule 32.3 speaks of a party “desiring to lodge non-record material,” though I see no reason the Court couldn’t order such a lodging sua sponte.