Corte Suprema degli Stati uniti d’America, Hollingsworth e altri c. Perry e altri, decisione del 26 giugno 2013

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(Slip Opinion) OCTOBER TERM, 2012
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HOLLINGSWORTH ET AL. v. PERRY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 12–144. Argued March 26, 2013—Decided June 26, 2013
After the California Supreme Court held that limiting marriage to opposite-sex couples violated the California Constitution, state voters passed a ballot initiative known as Proposition 8, amending the StateConstitution to define marriage as a union between a man and a woman. Respondents, same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and namingas defendants California’s Governor and other state and local officials responsible for enforcing California’s marriage laws. The officials refused to defend the law, so the District Court allowed petitioners—the initiative’s official proponents—to intervene to defend it. After a bench trial, the court declared Proposition 8 unconstitutional and enjoined the public officials named as defendants from enforcing thelaw. Those officials elected not to appeal, but petitioners did. The Ninth Circuit certified a question to the California Supreme Court: whether official proponents of a ballot initiative have authority to assert the State’s interest in defending the constitutionality of the initiative when public officials refuse to do so. After the California Supreme Court answered in the affirmative, the Ninth Circuit concluded that petitioners had standing under federal law to defendProposition 8’s constitutionality. On the merits, the court affirmed the District Court’s order.
Held: Petitioners did not have standing to appeal the District Court’sorder. Pp. 5–17.
(a) Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” §2. One essential aspect of this requirement is that any person invoking thepower of a federal court must demonstrate standing to do so. In oth2
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er words, the litigant must seek a remedy for a personal and tangible harm. Although most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, Article III demands thatan “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U. S. ___, ___. Standing “must be metby persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U. S. 43, 64. The parties do not contest thatrespondents had standing to initiate this case against the Californiaofficials responsible for enforcing Proposition 8. But once the District Court issued its order, respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervened in theDistrict Court, but they had not been ordered to do or refrain fromdoing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. As this Court has repeatedly held, such a “generalized grievance”—no matter how sincere—is insufficient to confer standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574. Petitioners claim that the California Constitution and election laws give them a “ ‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process,” Reply Brief 5, but that isonly true during the process of enacting the law. Once Proposition 8 was approved, it became a duly enacted constitutional amendment.Petitioners have no role—special or otherwise—in its enforcement. They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every California citizen. No matter how deeply committed petitioners may be to upholding Proposition 8, that is not a particularized interest sufficientto create a case or controversy under Article III. Pp. 5–9.
(b) Petitioners’ arguments to the contrary are unpersuasive. Pp. 9– 16.
(1) They claim that they may assert the State’s interest on the State’s behalf, but it is a “fundamental restriction on our authority”that “[i]n the ordinary course, a litigant . . . cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U. S. 400, 410. In Diamond v. Charles, 476 U. S. 54, for example, a pediatrician engaged in private practice was not permitted to defend the constitutionality of Illinois’ abortion law after the Statechose not to appeal an adverse ruling. The state attorney general’s“letter of interest,” explaining that the State’s interest in the proceeding was “ ‘essentially co-terminous with’ ” Diamond’s position, id., at 61, was insufficient, since Diamond was unable to assert an injury ofhis own, id, at 65. Pp. 9–10.
(2) Petitioners contend the California Supreme Court’s determiCite
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nation that they were authorized under California law to assert the State’s interest in the validity of Proposition 8 means that they “needno more show a personal injury, separate from the State’s indisputable interest in the validity of its law, than would California’s Attorney General or did the legislative leaders held to have standing in Karcher v. May, 484 U. S. 72 (1987).” Reply Brief 6. But far from supporting petitioners’ standing, Karcher is compelling precedent against it. In that case, after the New Jersey attorney general refused to defend the constitutionality of a state law, leaders of NewJersey’s Legislature were permitted to appear, in their official capacities, in the District Court and Court of Appeals to defend the law. What is significant about Karcher, however, is what happened after the Court of Appeals decision. The legislators lost their leadershippositions, but nevertheless sought to appeal to this Court. The Court held that they could not do so. Although they could participate in thelawsuit in their official capacities as presiding officers of the legislature, as soon as they lost that capacity, they lost standing. Id., at 81. Petitioners here hold no office and have always participated in thislitigation solely as private parties. Pp. 10–13.
(3) Nor is support found in dicta in Arizonans for Official English
v. Arizona, supra. There, in expressing “grave doubts” about the standing of ballot initiative sponsors to defend the constitutionality ofan Arizona initiative, the Court noted that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Id., at 65. Petitioners argue that, byvirtue of the California Supreme Court’s decision, they are authorized to act as “agents of the people of California.” Brief for Petitioners 15. But that Court never described petitioners as “agents of the people.”All the California Supreme Court’s decision stands for is that, so far as California is concerned, petitioners may “assert legal arguments in defense of the state’s interest in the validity of the initiative measure” in federal court. 628 F. 3d 1191, 1193. That interest is by definition a generalized one, and it is precisely because proponents assertsuch an interest that they lack standing under this Court’s precedents. Petitioners are also plainly not agents of the State. As an initial matter, petitioners’ newfound claim of agency is inconsistent withtheir representations to the District Court, where they claimed torepresent their own interests as official proponents. More to the point, the basic features of an agency relationship are missing here: Petitioners are not subject to the control of any principal, and they owe no fiduciary obligation to anyone. As one amicus puts it, “theproponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to
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whatever extent they choose to defend it.” Brief for Walter Dellinger
23. Pp. 13–16.
(c) The Court does not question California’s sovereign right tomaintain an initiative process, or the right of initiative proponents todefend their initiatives in California courts. But standing in federalcourt is a question of federal law, not state law. No matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override thisCourt’s settled law to the contrary. Article III’s requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in the federal system of separated powers. States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse. Pp. 16–17.
671 F. 3d 1052, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined.
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NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 12–144
DENNIS HOLLINGSWORTH, ET AL., PETITIONERS v. KRISTIN M. PERRY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 26, 2013]
CHIEF JUSTICE ROBERTS delivered the opinion of theCourt.
The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry. That question has also given rise to litigation.In this case, petitioners, who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause “prohibits the State of California from defining marriageas the union of a man and a woman.” Pet. for Cert. i. Respondents, same-sex couples who wish to marry, viewthe issue in somewhat different terms: For them, it is whether California—having previously recognized theright of same-sex couples to marry—may reverse that decision through a referendum.
Federal courts have authority under the Constitution toanswer such questions only if necessary to do so in the course of deciding an actual “case” or “controversy.” As used in the Constitution, those words do not include everysort of dispute, but only those “historically viewed ascapable of resolution through the judicial process.” Flast
v. Cohen, 392 U. S. 83, 95 (1968). This is an essential
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limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.
For there to be such a case or controversy, it is not enough that the party invoking the power of the courthave a keen interest in the issue. That party must alsohave “standing,” which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, wehave no authority to decide this case on the merits, and neither did the Ninth Circuit.
I In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sexcouples violated the equal protection clause of the California Constitution. In re Marriage Cases, 43 Cal. 4th 757, 183 P. 3d 384. Later that year, California voters passed the ballot initiative at the center of this dispute, known asProposition 8. That proposition amended the CaliforniaConstitution to provide that “[o]nly marriage between aman and a woman is valid or recognized in California.” Cal. Const., Art. I, §7.5. Shortly thereafter, the California Supreme Court rejected a procedural challenge to theamendment, and held that the Proposition was properly enacted under California law. Strauss v. Horton, 46 Cal. 4th 364, 474–475, 207 P. 3d 48, 122 (2009). According to the California Supreme Court, Proposition8 created a “narrow and limited exception” to the state constitutional rights otherwise guaranteed to same-sex couples. Id., at 388, 207 P. 3d, at 61. Under California law, same-sex couples have a right to enter into relationships recognized by the State as “domestic partnerships,”which carry “the same rights, protections, and benefits,and shall be subject to the same responsibilities, obligations, and duties under law . . . as are granted to and
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imposed upon spouses.” Cal. Fam. Code Ann. §297.5(a) (West 2004). In In re Marriage Cases, the California Supreme Court concluded that the California Constitutionfurther guarantees same-sex couples “all of the constitutionally based incidents of marriage,” including the rightto have that marriage “officially recognized” as such by the State. 43 Cal. 4th, at 829, 183 P. 3d, at 433–434. Proposition 8, the court explained in Strauss, left those rights largely undisturbed, reserving only “the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law.” 46 Cal. 4th, at 388, 207 P. 3d, at 61.
Respondents, two same-sex couples who wish to marry,filed suit in federal court, challenging Proposition 8 underthe Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants California’s Governor,attorney general, and various other state and local officials responsible for enforcing California’s marriage laws.Those officials refused to defend the law, although theyhave continued to enforce it throughout this litigation.The District Court allowed petitioners—the official proponents of the initiative, see Cal. Elec. Code Ann. §342 (West 2003)—to intervene to defend it. After a 12-day benchtrial, the District Court declared Proposition 8 unconstitutional, permanently enjoining the California officialsnamed as defendants from enforcing the law, and “directing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal. 2010).
Those officials elected not to appeal the District Courtorder. When petitioners did, the Ninth Circuit askedthem to address “why this appeal should not be dismissed for lack of Article III standing.” Perry v. Schwarzenegger, Civ. No. 10–16696 (CA9, Aug. 16, 2010), p. 2. After brief4
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ing and argument, the Ninth Circuit certified a question to
the California Supreme Court: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possesseither a particularized interest in the initiative’s validity or the authority to assert the State’s interest in theinitiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that dutyrefuse to do so.” Perry v. Schwarzenegger, 628 F. 3d 1191, 1193 (2011).
The California Supreme Court agreed to decide thecertified question, and answered in the affirmative. Without addressing whether the proponents have a particularized interest of their own in an initiative’s validity, the court concluded that “[i]n a postelection challenge to avoter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend themeasure or appeal such a judgment decline to do so.” Perry v. Brown, 52 Cal. 4th 1116, 1127, 265 P. 3d 1002, 1007 (2011).
Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal law to defend the constitutionality of Proposition 8. California, it reasoned, “‘has standing to defend the constitutionality of its [laws],’” and States have the “prerogative, as independentsovereigns, to decide for themselves who may assert their interests.” Perry v. Brown, 671 F. 3d 1052, 1070, 1071 (2012) (quoting Diamond v. Charles, 476 U. S. 54, 62 (1986)). “All a federal court need determine is that the
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state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest inremedying that harm.” 671 F. 3d, at 1072.
On the merits, the Ninth Circuit affirmed the District Court. The court held the Proposition unconstitutional under the rationale of our decision in Romer v. Evans, 517
U. S. 620 (1996). 671 F. 3d, at 1076, 1095. In the Ninth Circuit’s view, Romer stands for the proposition that “theEqual Protection Clause requires the state to have a legitimate reason for withdrawing a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place.” 671 F. 3d, at 1083–1084. The Ninth Circuit concluded that “taking away the official designation” of “marriage” from same-sex couples, while continuing to afford those couples all the rights and obligations of marriage, did not further any legitimate interest of the State. Id., at 1095. Proposition8, in the court’s view, violated the Equal Protection Clause because it served no purpose “but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships.” Ibid.
We granted certiorari to review that determination, and directed that the parties also brief and argue “Whether petitioners have standing under Article III, §2, of the Constitution in this case.” 568 U. S. ___ (2012).
II Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” §2. One essential aspect of this requirement is that any person invoking the power of a federal court mustdemonstrate standing to do so. This requires the litigantto prove that he has suffered a concrete and particularizedinjury that is fairly traceable to the challenged conduct,and is likely to be redressed by a favorable judicial deci6
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sion. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560– 561 (1992). In other words, for a federal court to have authority under the Constitution to settle a dispute, theparty before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself tomeet Art. III’s requirements.” Diamond, supra, at 62.
The doctrine of standing, we recently explained, “servesto prevent the judicial process from being used to usurpthe powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___ (2013) (slip op., at 9). In lightof this “overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside the natural urge toproceed directly to the merits of [an] important disputeand to ‘settle’ it for the sake of convenience and efficiency.” Raines v. Byrd, 521 U. S. 811, 820 (1997) (footnote omitted).
Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, but Article III demands that an “actual controversy” persist throughoutall stages of litigation. Already, LLC v. Nike, Inc., 568
U. S. ___, ___ (2013) (slip op., at 4) (internal quotation marks omitted). That means that standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997). We therefore must decide whether petitioners had standing to appeal the District Court’s order.
Respondents initiated this case in the District Courtagainst the California officials responsible for enforcing Proposition 8. The parties do not contest that respondentshad Article III standing to do so. Each couple expressed adesire to marry and obtain “official sanction” from the State, which was unavailable to them given the declaration in Proposition 8 that “marriage” in California is solely
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between a man and a woman. App. 59.
After the District Court declared Proposition 8 unconstitutional and enjoined the state officials named as defendants from enforcing it, however, the inquiry under Article III changed. Respondents no longer had any injury toredress—they had won—and the state officials chose not to appeal.
The only individuals who sought to appeal that orderwere petitioners, who had intervened in the DistrictCourt. But the District Court had not ordered them to do or refrain from doing anything. To have standing, a litigant must seek relief for an injury that affects him ina “personal and individual way.” Defenders of Wildlife, supra, at 560, n. 1. He must possess a “direct stake in the outcome” of the case. Arizonans for Official English, supra, at 64 (internal quotation marks omitted). Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the DistrictCourt order reversed was to vindicate the constitutional validity of a generally applicable California law.
We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing. A litigant “raising only a generally available grievance about government—claiming only harm to hisand every citizen’s interest in proper application of theConstitution and laws, and seeking relief that no moredirectly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Defenders of Wildlife, supra, at 573–574; see Lance v. Coffman, 549 U. S. 437, 439 (2007) (per curiam) (“Our refusal to serve as a forum for generalized grievances hasa lengthy pedigree.”); Allen v. Wright, 468 U. S. 737, 754 (1984) (“an asserted right to have the Government act inaccordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court”); Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (“The party who invokes
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the [judicial] power must be able to show . . . that he hassustained or is immediately in danger of sustaining somedirect injury . . . and not merely that he suffers in someindefinite way in common with people generally.”).
Petitioners argue that the California Constitution and its election laws give them a “‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process—one ‘involving bothauthority and responsibilities that differ from other supporters of the measure.’” Reply Brief 5 (quoting 52 Cal. 4th, at 1126, 1142, 1160, 265 P. 3d, at 1006, 1017–1018, 1030). True enough—but only when it comes to the process of enacting the law. Upon submitting the proposedinitiative to the attorney general, petitioners became the official “proponents” of Proposition 8. Cal. Elec. Code Ann. §342 (West 2003). As such, they were responsible for collecting the signatures required to qualify the measure for the ballot. §§9607–9609. After those signatures were collected, the proponents alone had the right to file the measure with election officials to put it on the ballot.§9032. Petitioners also possessed control over the arguments in favor of the initiative that would appear in California’s ballot pamphlets. §§9064, 9065, 9067, 9069.
But once Proposition 8 was approved by the voters, themeasure became “a duly enacted constitutional amendment or statute.” 52 Cal. 4th, at 1147, 265 P. 3d, at 1021. Petitioners have no role—special or otherwise—in theenforcement of Proposition 8. See id., at 1159, 265 P. 3d, at 1029 (petitioners do not “possess any official authority . . . to directly enforce the initiative measure in question”). They therefore have no “personal stake” in defending itsenforcement that is distinguishable from the generalinterest of every citizen of California. Defenders of Wildlife, supra, at 560–561.
Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’” Diamond, 476
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U. S., at 62. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their]advocacy,” post, at 4 (KENNEDY, J., dissenting), that is not a “particularized” interest sufficient to create a case or controversy under Article III. Defenders of Wildlife, 504
U. S., at 560, and n. 1; see Arizonans for Official English, 520 U. S., at 65 (“Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated.”); Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).
III
A
Without a judicially cognizable interest of their own,petitioners attempt to invoke that of someone else. Theyassert that even if they have no cognizable interest inappealing the District Court’s judgment, the State of California does, and they may assert that interest on the State’s behalf. It is, however, a “fundamental restriction on our authority” that “[i]n the ordinary course, a litigantmust assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U. S. 400, 410 (1991). There are “certain, limited exceptions” to that rule. Ibid. But even when we have allowed litigants to assert the interests of others, the litigants themselves still “must have suffered an injury in fact, thus giving [them] asufficiently concrete interest in the outcome of the issue in dispute.” Id., at 411 (internal quotation marks omitted).
In Diamond v. Charles, for example, we refused to allow Diamond, a pediatrician engaged in private practice inIllinois, to defend the constitutionality of the State’s abortion law. In that case, a group of physicians filed a con10
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stitutional challenge to the Illinois statute in federal court. The State initially defended the law, and Diamond,a professed “conscientious object[or] to abortions,” intervened to defend it alongside the State. 476 U. S., at 57–58.
After the Seventh Circuit affirmed a permanent injunction against enforcing several provisions of the law, the State chose not to pursue an appeal to this Court. But when Diamond did, the state attorney general filed a “‘letter of interest,’” explaining that the State’s interest in the proceeding was “‘essentially co-terminous with the position on the issues set forth by [Diamond].’” Id., at 61. That was not enough, we held, to allow the appeal to proceed. As the Court explained, “[e]ven if there were circumstances in which a private party would have stand- ing to defend the constitutionality of a challenged statute,this [was] not one of them,” because Diamond was not able to assert an injury in fact of his own. Id., at 65 (footnoteomitted). And without “any judicially cognizable interest,” Diamond could not “maintain the litigation abandoned bythe State.” Id., at 71.
For the reasons we have explained, petitioners havelikewise not suffered an injury in fact, and therefore would ordinarily have no standing to assert the State’s interests.
B Petitioners contend that this case is different, because the California Supreme Court has determined that they are “authorized under California law to appear and assertthe state’s interest” in the validity of Proposition 8. 52 Cal. 4th, at 1127, 265 P. 3d, at 1007. The court below agreed: “All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest inremedying that harm.” 671 F. 3d, at 1072. As petitioners
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put it, they “need no more show a personal injury, separate from the State’s indisputable interest in the validityof its law, than would California’s Attorney General or did the legislative leaders held to have standing in Karcher v. May, 484 U. S. 72 (1987).” Reply Brief 6.
In Karcher, we held that two New Jersey state legislators—Speaker of the General Assembly Alan Karcherand President of the Senate Carmen Orechio—could intervene in a suit against the State to defend the constitutionality of a New Jersey law, after the New Jersey attorney general had declined to do so. 484 U. S., at 75, 81–82. “Since the New Jersey Legislature had authority under state law to represent the State’s interests in both the District Courtand the Court of Appeals,” we held that the Speaker and the President, in their official capacities, could vindicate that interest in federal court on the legislature’s behalf. Id., at 82.
Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislatorsin that case intervened in their official capacities as Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continuedenforceability” of its laws that is harmed by a judicialdecision declaring a state law unconstitutional. Maine v. Taylor, 477 U. S. 131, 137 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court. See Poindexter v. Greenhow, 114 U. S. 270, 288 (1885) (“The State is a political corporate body [that] can act only through agents”). That agent is typically the State’s attorney general. But state law may provide for other officials to speak for the State in federal court, as New Jersey law did for the State’s presiding legislative officers in Karcher. See 484 U. S., at 81–82.
What is significant about Karcher is what happened after the Court of Appeals decision in that case. Karcher and Orechio lost their positions as Speaker and President,
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but nevertheless sought to appeal to this Court. We held that they could not do so. We explained that while theywere able to participate in the lawsuit in their official capacities as presiding officers of the incumbent legislature, “since they no longer hold those offices, they lackauthority to pursue this appeal.” Id., at 81.
The point of Karcher is not that a State could authorize private parties to represent its interests; Karcher andOrechio were permitted to proceed only because they werestate officers, acting in an official capacity. As soon as they lost that capacity, they lost standing. Petitioners here hold no office and have always participated in thislitigation solely as private parties.
The cases relied upon by the dissent, see post, at 11–12, provide petitioners no more support. The dissent’s primaryauthorities, in fact, do not discuss standing at all. See Young v. United States ex rel. Vuitton et Fils S. A., 481
U. S. 787 (1987); United States v. Providence Journal Co., 485 U. S. 693 (1988). And none comes close to establishing that mere authorization to represent a third party’s interests is sufficient to confer Article III standing on private parties with no injury of their own.
The dissent highlights the discretion exercised by special prosecutors appointed by federal courts to pursue contempt charges. See post, at 11 (citing Young, supra, at 807). Such prosecutors do enjoy a degree of independence in carrying out their appointed role, but no one wouldsuppose that they are not subject to the ultimate authority of the court that appointed them. See also Providence Journal, supra, at 698–707 (recognizing furthercontrol exercised by the Solicitor General over special prosecutors).
The dissent’s remaining cases, which at least consider standing, are readily distinguishable. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 771–778 (2000) (justifying qui tam actions
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based on a partial assignment of the Government’s damages claim and a “well nigh conclusive” tradition of suchactions in English and American courts dating back to the13th century); Whitmore v. Arkansas, 495 U. S. 149, 162– 164 (1989) (justifying “next friend” standing based on asimilar history dating back to the 17th century, requiringthe next friend to prove a disability of the real party ininterest and a “significant relationship” with that party); Gollust v. Mendell, 501 U. S. 115, 124–125 (1990) (requiring plaintiff in shareholder-derivative suit to maintain afinancial stake in the outcome of the litigation, to avoid “serious constitutional doubt whether that plaintiff could demonstrate the standing required by Article III’s case-orcontroversy limitation”).
C Both petitioners and respondents seek support from dicta in Arizonans for Official English v. Arizona, 520
U. S. 43. The plaintiff in Arizonans for Official Englishfiled a constitutional challenge to an Arizona ballot initiative declaring English “‘the official language of the Stateof Arizona.’” Id., at 48. After the District Court declared the initiative unconstitutional, Arizona’s Governor announced that she would not pursue an appeal. Instead, the principal sponsor of the ballot initiative—the Arizonans for Official English Committee—sought to defend themeasure in the Ninth Circuit. Id., at 55–56, 58. Analogizing the sponsors to the Arizona Legislature, the NinthCircuit held that the Committee was “qualified to defend[the initiative] on appeal,” and affirmed the District Court. Id., at 58, 61.
Before finding the case mooted by other events, thisCourt expressed “grave doubts” about the Ninth Circuit’s standing analysis. Id., at 66. We reiterated that “[s]tanding to defend on appeal in the place of an originaldefendant . . . demands that the litigant possess ‘a direct
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stake in the outcome.’” Id., at 64 (quoting Diamond, 476
U. S., at 62). We recognized that a legislator authorized by state law to represent the State’s interest may satisfystanding requirements, as in Karcher, supra, at 82, but noted that the Arizona committee and its members were “not elected representatives, and we [we]re aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Arizonans for Official English, supra, at 65.
Petitioners argue that, by virtue of the California Supreme Court’s decision, they are authorized to act “‘as agents of the people’ of California.” Brief for Petitioners 15 (quoting Arizonans for Official English, supra, at 65).But that Court never described petitioners as “agents ofthe people,” or of anyone else. Nor did the Ninth Circuit. The Ninth Circuit asked—and the California SupremeCourt answered—only whether petitioners had “the authority to assert the State’s interest in the initiative’svalidity.” 628 F. 3d, at 1193; 52 Cal. 4th, at 1124, 265
P. 3d, at 1005. All that the California Supreme Court decision stands for is that, so far as California is concerned, petitioners may argue in defense of Proposition 8.This “does not mean that the proponents become de factopublic officials”; the authority they enjoy is “simply the authority to participate as parties in a court action and toassert legal arguments in defense of the state’s interest in the validity of the initiative measure.” Id., at 1159, 265
P. 3d, at 1029. That interest is by definition a generalized one, and it is precisely because proponents assert such an interest that they lack standing under our precedents.
And petitioners are plainly not agents of the State—“formal” or otherwise, see post, at 7. As an initial matter, petitioners’ newfound claim of agency is inconsistent withtheir representations to the District Court. When the proponents sought to intervene in this case, they did not
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purport to be agents of California. They argued insteadthat “no other party in this case w[ould] adequately represent their interests as official proponents.” Motion to Intervene in No. 09–2292 (ND Cal.), p. 6 (emphasisadded). It was their “unique legal status” as officialproponents—not an agency relationship with the people of California—that petitioners claimed “endow[ed] them witha significantly protectable interest” in ensuring that theDistrict Court not “undo[ ] all that they ha[d] done inobtaining . . . enactment” of Proposition 8. Id., at 10, 11.
More to the point, the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. “An essential element of agency is the principal’s right to control the agent’s actions.” 1 Restatement (Third) of Agency §1.01, Comment f (2005) (hereinafter Restatement). Yet petitioners answer to no one; they decide forthemselves, with no review, what arguments to make and how to make them. Unlike California’s attorney general,they are not elected at regular intervals—or elected at all.See Cal. Const., Art. V, §11. No provision provides for their removal. As one amicus explains, “the proponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to whatever extent they choose to defend it.” Brief for Walter Dellinger 23.
“If the relationship between two persons is one of agency . . . , the agent owes a fiduciary obligation to the principal.” 1 Restatement §1.01, Comment e. But petitioners owe nothing of the sort to the people of California. Unlike California’s elected officials, they have taken no oath ofoffice. E.g., Cal. Const., Art. XX, §3 (prescribing the oathfor “all public officers and employees, executive, legislative, and judicial”). As the California Supreme Courtexplained, petitioners are bound simply by “the same ethical constraints that apply to all other parties in a legal
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proceeding.” 52 Cal. 4th, at 1159, 265 P. 3d, at 1029. They are free to pursue a purely ideological commit- ment to the law’s constitutionality without the need to take cognizance of resource constraints, changes in public opinion, or potential ramifications for other statepriorities.
Finally, the California Supreme Court stated that “[t]hequestion of who should bear responsibility for any attorneyfee award . . . is entirely distinct from the question” beforeit. Id., at 1161, 265 P. 3d, at 1031. (emphasis added). But it is hornbook law that “a principal has a duty to indemnify the agent against expenses and other losses incurredby the agent in defending against actions brought by third parties if the agent acted with actual authority in takingthe action challenged by the third party’s suit.” 2 Restatement §8.14, Comment d. If the issue of fees is entirelydistinct from the authority question, then authority cannotbe based on agency.
Neither the California Supreme Court nor the NinthCircuit ever described the proponents as agents of theState, and they plainly do not qualify as such.
IV The dissent eloquently recounts the California SupremeCourt’s reasons for deciding that state law authorizes petitioners to defend Proposition 8. See post, at 3–5. We do not “disrespect[ ]” or “disparage[ ]” those reasons. Post, at 12. Nor do we question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts,where Article III does not apply. But as the dissent acknowledges, see post, at 1, standing in federal court is aquestion of federal law, not state law. And no matter its reasons, the fact that a State thinks a private party shouldhave standing to seek relief for a generalized grievance cannot override our settled law to the contrary.
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The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers. “Refusing to entertain generalized grievances ensures that . . . courts exercise power that is judicial in nature,” Lance, 549 U. S., at 441, and ensures that the Federal Judiciary respects “the proper—and properly limited—role of thecourts in a democratic society,” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006) (internal quotation marksomitted). States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket tothe federal courthouse.
* * *
We have never before upheld the standing of a privateparty to defend the constitutionality of a state statutewhen state officials have chosen not to. We decline to do so for the first time here.
Because petitioners have not satisfied their burden todemonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.
It is so ordered.
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KENNEDY, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 12–144
DENNIS HOLLINGSWORTH, ET AL., PETITIONERS v. KRISTIN M. PERRY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 26, 2013]
JUSTICE KENNEDY, with whom JUSTICE THOMAS, JUS-TICE ALITO, and JUSTICE SOTOMAYOR join, dissenting.
The Court’s opinion is correct to state, and the SupremeCourt of California was careful to acknowledge, that a proponent’s standing to defend an initiative in federal court is a question of federal law. Proper resolution of thejusticiability question requires, in this case, a threshold determination of state law. The state-law question is howCalifornia defines and elaborates the status and authority of an initiative’s proponents who seek to intervene in court to defend the initiative after its adoption by the electorate. Those state-law issues have been addressed in a metic- ulous and unanimous opinion by the Supreme Court of California.
Under California law, a proponent has the authority toappear in court and assert the State’s interest in defending an enacted initiative when the public officials chargedwith that duty refuse to do so. The State deems such an appearance essential to the integrity of its initiative process. Yet the Court today concludes that this state-definedstatus and this state-conferred right fall short of meetingfederal requirements because the proponents cannot point to a formal delegation of authority that tracks the requirements of the Restatement of Agency. But the State Supreme Court’s definition of proponents’ powers is bind2
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ing on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisitesfor justiciability under Article III of the United StatesConstitution.
In my view Article III does not require California, when deciding who may appear in court to defend an initiativeon its behalf, to comply with the Restatement of Agency orwith this Court’s view of how a State should make its laws or structure its government. The Court’s reasoning doesnot take into account the fundamental principles or thepractical dynamics of the initiative system in California, which uses this mechanism to control and to bypass pub- lic officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation. See M. Waters, Initiative and Referendum Almanac 12 (2003). In my sub- mission, the Article III requirement for a justiciable case or controversy does not prevent proponents from having their day in court.
These are the premises for this respectful dissent.
I As the Court explains, the State of California sustained a concrete injury, sufficient to satisfy the requirements of Article III, when a United States District Court nullified a portion of its State Constitution. See ante, at 11 (citing Maine v. Taylor, 477 U. S. 131, 137 (1986)). To determine whether justiciability continues in appellate proceedingsafter the State Executive acquiesced in the District Court’s adverse judgment, it is necessary to ascertain what persons, if any, have “authority under state law to represent the State’s interests” in federal court. Karcher v. May, 484
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U. S. 72, 82 (1987); see also Arizonans for Official English
v. Arizona, 520 U. S. 43, 65 (1997).
As the Court notes, the California Elections Code does not on its face prescribe in express terms the duties orrights of proponents once the initiative becomes law. Ante, at 8. If that were the end of the matter, the Court’s analysis would have somewhat more force. But it is not the end of the matter. It is for California, not this Court, to determine whether and to what extent the Elections Code provisions are instructive and relevant in determining theauthority of proponents to assert the State’s interest inpostenactment judicial proceedings. And it is likewise not for this Court to say that a State must determine the substance and meaning of its laws by statute, or by judicial decision, or by a combination of the two. See Sweezy
v. New Hampshire, 354 U. S. 234, 255 (1957) (plurality opinion); Dreyer v. Illinois, 187 U. S. 71, 84 (1902). That, too, is for the State to decide.
This Court, in determining the substance of state law, is“bound by a state court’s construction of a state statute.” Wisconsin v. Mitchell, 508 U. S. 476, 483 (1993). And the Supreme Court of California, in response to the certifiedquestion submitted to it in this case, has determined thatState Elections Code provisions directed to initiative proponents do inform and instruct state law respecting the rights and status of proponents in postelection judicial proceedings. Here, in reliance on these statutes and the California Constitution, the State Supreme Court has heldthat proponents do have authority “under California law to appear and assert the state’s interest in the initiative’svalidity and appeal a judgment invalidating the measurewhen the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” Perry
v. Brown, 52 Cal. 4th 1116, 1127, 265 P. 3d 1002, 1007
(2011).The reasons the Supreme Court of California gave for its
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holding have special relevance in the context of determining whether proponents have the authority to seek a federal-court remedy for the State’s concrete, substantial,and continuing injury. As a class, official proponents area small, identifiable group. See Cal. Elec. Code Ann. §9001(a) (West Cum. Supp. 2013). Because many of their decisions must be unanimous, see §§9001(b)(1), 9002(b), they are necessarily few in number. Their identities are public. §9001(b)(2). Their commitment is substantial. See §§9607–9609 (West Cum. Supp. 2013) (obtaining pe- tition signatures); §9001(c) (monetary fee); §§9065(d),9067, 9069 (West 2003) (drafting arguments for officialballot pamphlet). They know and understand the purpose and operation of the proposed law, an important requisite in defending initiatives on complex matters such as taxation and insurance. Having gone to great lengths to convince voters to enact an initiative, they have a stake in theoutcome and the necessary commitment to provide zealous advocacy.
Thus, in California, proponents play a “unique role . . .in the initiative process.” 52 Cal. 4th, at 1152, 265 P. 3d, at 1024. They “have a unique relationship to the voterapproved measure that makes them especially likely to bereliable and vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative’senactment into law.” Ibid.; see also id., at 1160, 265 P. 3d, at 1030 (because of “their special relationship to the ini-tiative measure,” proponents are “the most obvious and logical private individuals to ably and vigorously defend the validity of the challenged measure on behalf of theinterests of the voters who adopted the initiative intolaw”). Proponents’ authority under state law is not a contrivance. It is not a fictional construct. It is the product of the California Constitution and the California Elections Code. There is no basis for this Court to set aside the California Supreme Court’s determination of state
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law.
The Supreme Court of California explained that itsholding was consistent with recent decisions from otherStates. Id., at 1161–1165, 265 P. 3d, at 1031–1033. In Sportsmen for I–143 v. Fifteenth Jud. Ct., 2002 MT 18, 308 Mont. 189, 40 P. 3d 400, the Montana Supreme Court unanimously held that because initiative sponsors “may be in the best position to defend their interpretation” of the initiative and had a “direct, substantial, legally protectable interest in” the lawsuit challenging that interpretation, they were “entitled to intervene as a matter of right.” Id., at 194–195, 40 P. 3d, at 403. The Alaska Supreme Court reached a similar unanimous result in Alaskans for a Common Language Inc., v. Kritz, 3 P. 3d 906 (2000). It noted that, except in extraordinary cases, “a sponsor’sdirect interest in legislation enacted through the initiativeprocess and the concomitant need to avoid the appearanceof [a conflict of interest] will ordinarily preclude courtsfrom denying intervention as of right to a sponsoring group.” Id., at 914.
For these and other reasons, the Supreme Court of California held that the California Elections Code and Article II, §8, of the California Constitution afford proponents “the authority . . . to assert the state’s interest in thevalidity of the initiative” when State officials decline to do so. 52 Cal. 4th, at 1152, 265 P. 3d, at 1024. The court repeated this unanimous holding more than a half-dozen times and in no uncertain terms. See id., at 1126, 1127, 1139, 1149, 1151, 1152, 1165, 256 P. 3d, at 1006, 1007, 1015, 1022, 1024, 1025, 1033; see also id., at 1169–1170, 265 P. 3d, at 1036–1037 (Kennard, J., concurring). That should suffice to resolve the central issue on which the federal question turns.
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II
A
The Court concludes that proponents lack sufficient ties to the state government. It notes that they “are notelected,” “answer to no one,” and lack “‘a fiduciary obligation’” to the State. Ante, at 15 (quoting 1 Restatement (Third) ofAgency §1.01, Comments e, f (2005)). But what the Court deems deficiencies in the proponents’ connection to the State government, the State Supreme Court saw as essential qualifications to defend the initiative system. The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement “the theory that all power of government ultimatelyresides in the people.” 52 Cal. 4th, at 1140, 265 P. 3d, at 1016 (internal quotation marks omitted). The right toadopt initiatives has been described by the California courts as “one of the most precious rights of [the State’s]democratic process.” Ibid. (internal quotation marksomitted). That historic role for the initiative system “grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.” Ibid. The initiative’s “primary purpose,” then, “was to afford the people the ability to propose and to adopt constitutional amendmentsor statutory provisions that their elected public officials had refused or declined to adopt.” Ibid.
The California Supreme Court has determined that thispurpose is undermined if the very officials the initiativeprocess seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. See id., at 1160, 265 P. 3d, at 1030; cf. Alaskans for a Common Language, supra, at 914 (noting that proponents must be allowed to defend an enacted initiative in order to avoid the perception, correct ornot, “that the interests of [the proponents] were not being
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defended vigorously by the executive branch”). Giving theGovernor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure. See 52 Cal. 4th, at 1126–1128, 265 P. 3d, at 1006– 1007. And in light of the frequency with which initiatives’ opponents resort to litigation, the impact of that vetocould be substantial. K. Miller, Direct Democracy and the Courts 106 (2009) (185 of the 455 initiatives approved inArizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court). As a consequence, California finds it necessary to vest the re- sponsibility and right to defend a voter-approved initiativein the initiative’s proponents when the State Executive declines to do so.
Yet today the Court demands that the State follow the Restatement of Agency. See ante, at 15–16. There are reasons, however, why California might conclude that aconventional agency relationship is inconsistent with thehistory, design, and purpose of the initiative process. The State may not wish to associate itself with proponents ortheir views outside of the “extremely narrow and limited” context of this litigation, 52 Cal. 4th, at 1159, 265 P. 3d, at 1029, or to bear the cost of proponents’ legal fees. The State may also wish to avoid the odd conflict of having aformal agent of the State (the initiative’s proponent) arguing in favor of a law’s validity while state officials (e.g., the attorney general) contend in the same proceeding that it should be found invalid.
Furthermore, it is not clear who the principal in anagency relationship would be. It would make little sense if it were the Governor or attorney general, for that wouldfrustrate the initiative system’s purpose of circumventingelected officials who fail or refuse to effect the public will. Id., at 1139–1140, 265 P. 3d, at 1016. If there is to be a principal, then, it must be the people of California, as the ultimate sovereign in the State. See ibid., 265 P. 3d, at
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1015–1016 (quoting Cal. Const., Art. II, §1) (“‘All political power is inherent in the people’”). But the Restatement may offer no workable example of an agent representing a principal composed of nearly 40 million residents of a State. Cf. 1 Restatement (Second) of Agency, p. 2, Scope Note (1957) (noting that the Restatement “does not state the special rules applicable to public officers”); 1 Restatement (First) of Agency, p. 4, Scope Note (1933) (same).
And if the Court’s concern is that the proponents are unaccountable, that fear is neither well founded nor suf- ficient to overcome the contrary judgment of the StateSupreme Court. It must be remembered that both elected officials and initiative proponents receive their authorityto speak for the State of California directly from the people. The Court apparently believes that elected officialsare acceptable “agents” of the State, see ante, at 11–12, but they are no more subject to ongoing supervision of their principal—i.e., the people of the State—than are initiative proponents. At most, a Governor or attorney general can be recalled or voted out of office in a subsequent election, but proponents, too, can have their authority terminated or their initiative overridden by a subsequent ballot measure. Finally, proponents and their attor-neys, like all other litigants and counsel who appear before a federal court, are subject to duties of candor, deco- rum, and respect for the tribunal and co-parties alike, allof which guard against the possibility that initiative proponents will somehow fall short of the appropriate stan- dards for federal litigation.
B Contrary to the Court’s suggestion, this Court’s precedents do not indicate that a formal agency relationship is necessary. In Karcher v. May, 484 U. S. 72 (1987), the Speaker of the New Jersey Assembly (Karcher) and President of the New Jersey Senate (Orechio) intervened in
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support of a school moment-of-silence law that the State’s Governor and attorney general declined to defend in court.In considering the question of standing, the Court looked to New Jersey law to determine whether Karcher andOrechio “had authority under state law to represent theState’s interest in both the District Court and Court of Appeals.” Id., at 82. The Court concluded that they did.Because the “New Jersey Supreme Court ha[d] grantedapplications of the Speaker of the General Assembly and the President of the Senate to intervene as partiesrespondent on behalf of the legislature in defense of a legislative enactment,” the Karcher Court held that standing had been proper in the District Court and Court of Appeals. Ibid. By the time the case arrived in this Court, Karcher and Orechio had lost their presiding legislative offices, without which they lacked the authority to represent the State under New Jersey law. This, the Court held, deprived them of standing. Id., at 81. Here, bycontrast, proponents’ authority under California law is notcontingent on officeholder status, so their standing isunaffected by the fact that they “hold no office” in California’s Government. Ante, at 12.
Arizonans for Official English v. Arizona, 520 U. S. 43 (1997), is consistent with the premises of this dissent, not with the rationale of the Court’s opinion. See ante, at 13–
14. There, the Court noted its serious doubts as to the aspiring defenders’ standing because there was “no Ari- zona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.”520 U. S., at 65. The Court did use the word “agents”; but,read in context, it is evident that the Court’s intention was not to demand a formal agency relationship in compliancewith the Restatement. Rather, the Court used the term as shorthand for a party whom “state law authorizes” to “represent the State’s interests” in court. Ibid.
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Both the Court of Appeals and the Supreme Court of California were mindful of these precedents and sought tocomply with them. The state court, noting the importanceof Arizonans for Official English, expressed its understanding that “the high court’s doubts as to the official initiative proponents’ standing in that case were based, atleast in substantial part, on the fact that the court was notaware of any ‘Arizona law appointing initiative sponsorsas agents of the people of Arizona to defend . . . the constitutionality of initiatives made law of the State.’” 52 Cal. 4th, at 1136–1137, 265 P. 3d, at 1013–1014 (quoting 520
U. S., at 65). Based on this passage, it concluded that “nothing in [Arizonans for Official English] indicates thatif a state’s law does authorize the official proponents of aninitiative to assert the state’s interest in the validity of a challenged state initiative when the public officials who ordinarily assert that interest have declined to do so, theproponents would not have standing to assert the state’sinterest in the initiative’s validity in a federal lawsuit.” Id., at 1137, 265 P. 3d, at 1014.
The Court of Appeals, too, was mindful of this requirement. Perry v. Brown, 671 F. 3d 1052, 1072–1073 (CA9 2012). Although that panel divided on the proper resolution of the merits of this case, it was unanimous in concluding that proponents satisfy the requirements of Article
III. Compare id., at 1070–1075 (majority opinion), with id., at 1096–1097 (N. R. Smith, J., concurring in part and dissenting in part). Its central premise, ignored by the Court today, was that the “State’s highest court [had] heldthat California law provides precisely what the Arizonans Court found lacking in Arizona law: it confers on the official proponents of an initiative the authority to assertthe State’s interests in defending the constitutionality ofthat initiative, where state officials who would ordinarily assume that responsibility choose not to do so.” Id., at 1072 (majority opinion). The Court of Appeals and the
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State Supreme Court did not ignore Arizonans for Official English; they were faithful to it.
C The Court’s approach in this case is also in tension withother cases in which the Court has permitted individuals to assert claims on behalf of the government or others. For instance, Federal Rule of Criminal Procedure 42(a)(2) allows a court to appoint a private attorney to investigateand prosecute potential instances of criminal contempt.Under the Rule, this special prosecutor is not the agent of the appointing judge; indeed, the prosecutor’s “determination of which persons should be targets of the investigation, what methods of investigation should be used, whatinformation will be sought as evidence,” whom to charge, and other “decisions . . . critical to the conduct of a prosecution, are all made outside the supervision of the court.” Young v. United States ex rel. Vuitton et Fils S. A., 481
U. S. 787, 807 (1987). Also, just as proponents have been authorized to represent the State of California, “‘[p]rivateattorneys appointed to prosecute a criminal contempt action represent the United States,’” United States v. Providence Journal Co., 485 U. S. 693, 700 (1988). They are“appointed solely to pursue the public interest in vindication of the court’s authority,” Young, supra, at 804, an interest that—like California’s interest in the validity of its laws—is “unique to the sovereign,” Providence Journal Co., supra, at 700. And, although the Court dismisses the proponents’ standing claim because initiative proponents “are not elected” and “decide for themselves, with no review, what arguments to make and how to make them” indefense of the enacted initiative, ante, at 15, those same charges could be leveled with equal if not greater force at the special prosecutors just discussed. See Young, supra, at 807.
Similar questions might also arise regarding qui tam
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actions, see, e.g., Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 771–778 (2000); suits involving “next friends” litigating on behalf of a real party in interest, see, e.g., Whitmore v. Arkansas, 495 U. S. 149, 161–166 (1990); or shareholder-derivativesuits, see, e.g., Gollust v. Mendell, 501 U. S. 115, 125–126 (1991). There is no more of an agency relationship in any of these settings than in the instant case, yet the Court has nonetheless permitted a party to assert the interestsof another. That qui tam actions and “next friend” litigation may have a longer historical pedigree than the initiative process, see ante, at 12–13, is no basis for finding Article III’s standing requirement met in those cases but lacking here. In short, the Court today unsettles itslongtime understanding of the basis for jurisdiction inrepresentative-party litigation, leaving the law unclear andthe District Court’s judgment, and its accompanying statewide injunction, effectively immune from appellate review.
III There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is toensure vigorous advocacy, yet the Court insists uponlitigation conducted by state officials whose preference isto lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, butthe Court’s opinion today means that a single district court can make a decision with far-reaching effects thatcannot be reviewed. And rather than honor the principlethat justiciability exists to allow disputes of public policy to be resolved by the political process rather than the courts, see, e.g., Allen v. Wright, 468 U. S. 737, 750–752 (1984), here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democraticelection. The Court’s opinion disrespects and disparages both the
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political process in California and the well-stated opinionof the California Supreme Court in this case. The California Supreme Court, not this Court, expresses concern for vigorous representation; the California Supreme Court,not this Court, recognizes the necessity to avoid conflicts of interest; the California Supreme Court, not this Court,comprehends the real interest at stake in this litigation and identifies the most proper party to defend that interest. The California Supreme Court’s opinion reflects a better understanding of the dynamics and principles of Article III than does this Court’s opinion.
Of course, the Court must be cautious before entering arealm of controversy where the legal community andsociety at large are still formulating ideas and approaches to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject. As the California Supreme Court recognized, “the question before us involves a fundamental procedural issue thatmay arise with respect to any initiative measure, without regard to its subject matter.” 52 Cal. 4th, at 1124, 265
P. 3d, at 1005 (emphasis in original). If a federal court must rule on a constitutional point that either confirms orrejects the will of the people expressed in an initiative, that is when it is most necessary, not least necessary, to insist on rules that ensure the most committed and vigorous adversary arguments to inform the rulings of the courts.
* * * In the end, what the Court fails to grasp or accept is thebasic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests inthe people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over
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a century. “Through the structure of its government, and the character of those who exercise government authority,a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decisionholding that state law authorizes an enacted initiative’sproponents to defend the law if and when the State’s usuallegal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectfuldissent.