Much will be written about Chief Justice Roberts's opinion for the court in Hollingsworth v. Perry, holding that supporters of California's Proposition 8 lacked constitutional "standing" to defend in federal court California's ballot initiative against same-sex marriage. (Whether or not same-sex marriage will destroy traditional marriage someday, it's certainly destroying Twitter this morning.) But one ironic twist deserves immediate mention.
In 2005, when Roberts was nominated to the court, he drew heavy fire from the left for his 1993 article in the Duke Law Review, "Article III Limits on Statutory Standing." (He also drew fire from "gay advocacy groups," but that's another story.) According to many on the left, Roberts's appointment to the court would further close the courthouse doors to favored liberal causes, by reinforcing the Rehnquist Court's precedents on "standing" as a limit on the federal courts' jurisdiction.
EarthJustice, an environmental group, warned, "Would John Roberts Deny Your Access To The Court?" MoveOn.org criticized Roberts's agreement with Lujan v. Defenders of Wildlife, a seminal case reinvigorating the doctrine of standing. The Washington Post published an entire op-ed largely about Robert's view of standing.
And the op-eds kept coming long after Roberts was confirmed. In 2007, the New York Times's Linda Greenhouse criticized Roberts' view that states lacked standing to sue the EPA to impose new greenhouse gas regulations:
That Chief Justice Roberts cast a dissenting vote in Massachusetts v. Environmental Protection Agency was no great surprise. He had advocated a narrow view of standing, particularly in environmental cases, since his days as a lawyer in the Reagan administration. ... For Chief Justice Roberts, limiting standing was more important than deference to the states, a choice rich with implications as the Roberts court continues to reveal itself.
Just three years later, she returned to the subject, with characteristic grace and charity:
Personally, I can hardly wait to watch Chief Justice John G. Roberts Jr. and his allies, for whom raising the barriers to standing is a core part of their agenda, figure out how to respond when one of the new issues reaches the Supreme Court.
But the biggest foreshadow of today's decision came at Roberts's confirmation hearing, when Senator Leahy argued that the courts' use of standing as a check on courts' jurisdiction threatens to insulate governors' and presidents' unlawful acts from judicial review: "So I ask you this. People, if their President or their Governor fails to enforce these laws, why should not individuals have access to courts"?
I suspect that Senator Leahy is a lot less worried about that today than he was in 2005. His demand for the courts to allow citizens to enforce "these laws" is probably less urgent when "these laws" include Prop 8, rather than environmental laws. Linda Greenhouse's, too. Chalk it up as another example of "strange new respect."