Constitutional Law

Did a Never-Released Thomas Opinion Lead to 'Profound Battle' over Standing in Gay Marriage Cases?

Former New York Times legal journalist Linda Greenhouse has a theory about a “procedural minefield” in the two gay-marriage cases pending before the U.S. Supreme Court. The theory begins with a possible never-released opinion by Justice Clarence Thomas.

When the Supreme Court granted cert in the two gay marriage cases, it asked the parties to address whether the parties have standing under Article III of the Constitution establishing federal court jurisdiction. In one of the cases, California officials didn’t want to appeal a ruling striking down a voter-approved gay marriage ban, so referendum supporters stepped in. In the other case, the Obama administration isn’t defending a law denying federal benefits to married same-sex couples, so House GOP leaders are defending the statute.

Greenhouse suspects the Supreme Court is engaged in “a profound battle over the meaning of Article III jurisdiction, an issue proving so divisive that the justices haven’t yet permitted it to fully surface.” She outlines her theory at the New York Times’ Opinionator blog.

Greenhouse believes the disagreement stems from a case dismissed at the end of last term as improvidently granted. The issue in First American Financial Corp. v. Edwards was whether a homebuyer who suffered no financial injury had standing to sue over an alleged kickback paid by her title insurance company. Greenhouse thinks the opinion was assigned to Justice Clarence Thomas.

“My guess is that Justice Thomas had drafted and circulated an opinion, grounded in an extremely narrow reading of Article III jurisdiction, that was so sweeping as to disable Congress from passing laws that along with granting statutory rights also give people access to court to vindicate those rights,” Greenhouse wrote. “I suspect it was an opinion so radical in its implications—a kind of jurisdictional nuclear option—that Justice Thomas was unable to hold a majority. …

“If I’m right, the First American debacle resolved nothing beyond pushing off to another day, another case, the battle over the dimensions of federal jurisdiction.”

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