# Arizona State Legislature v. Arizona Independent Redistricting Commission/Opinion of Justice Scalia

SUPREME COURT OF THE UNITED STATES
No. 13–1314
ARIZONA STATE LEGISLATURE, APPELLANT v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA [June 29, 2015]
Justice Scalia, with whom Justice Thomas joins, dissenting.
I do not believe that the question the Court answers is properly before us. Disputes between governmental branches or departments regarding the allocation of political power do not in my view constitute “cases” or “controversies” committed to our resolution by Art. III, §2, of the Constitution.
What those who framed and ratified the Constitution had in mind when they entrusted the “judicial Power” to a separate and coequal branch of the Federal Government was the judicial power they were familiar with—that traditionally exercised by English and American courts. The “cases” and “controversies” that those courts entertained did not include suits between units of government regarding their legitimate powers. The job of the courts was, in Chief Justice Marshall’s words, “solely, to decide on the rights of individuals,” Marbury v. Madison, 1 Cranch 137, 170 (1803). Tocqueville considered this one reason the new democracy could safely confer upon courts the immense power to hold legislation unconstitutional:
That doctrine of standing, that jurisdictional limitation upon our powers, does not have as its purpose (as the majority assumes) merely to assure that we will decide disputes in concrete factual contexts that enable “realistic appreciation of the consequences of judicial action,” ante, at 14. To the contrary. “[T]he law of Art. III standing is built on a single basic idea—the idea of separation of powers.” Allen v. Wright, 468 U. S. 737, 752 (1984). It keeps us minding our own business.
We consult history and judicial tradition to determine whether a given “ ‘disput[e is] appropriately resolved through the judicial process.’ ” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (internal quotation marks omitted). What history and judicial tradition show is that courts do not resolve direct disputes between two political branches of the same government regarding their respective powers. Nearly every separation-of-powers case presents questions like the ones in this case. But we have never passed on a separation-of-powers question raised ​directly by a governmental subunit’s complaint. We have always resolved those questions in the context of a private lawsuit in which the claim or defense depends on the constitutional validity of action by one of the governmental subunits that has caused a private party concrete harm. That is why, for example, it took this Court over 50 years to rule upon the constitutionality of the Tenure of Office Act, passed in 1867. If the law of standing had been otherwise, “presumably President Wilson, or Presidents Grant and Cleveland before him, would … have had standing, and could have challenged the law preventing the removal of a Presidential appointee without the consent of Congress.” Raines v. Byrd, 521 U. S. 811, 828 (1997).
We do not have to look far back in the United States Reports to find other separation-of-powers cases which, if the Arizona Legislature’s theory of standing is correct, took an awfully circuitous route to get here. In Zivotofsky v. Kerry, ante, p. ___, the President could have sued for an injunction against Congress’s attempted “direct usurpation” of his constitutionally-conferred authority to pronounce on foreign relations. Or in Wellness Int’l Network, Ltd. v. Sharif, 575 U. S. ___ (2015), a Federal District Judge could have sought a declaratory judgment that a bankruptcy court’s adjudicating a Stern claim improperly usurped his constitutionally conferred authority to decide cases and controversies. Or in NLRB v. Noel Canning, 573 U. S. ___ (2014), the Senate could have sued the President, claiming a direct usurpation of its prerogative to advise on and consent to Presidential appointments. Each of these cases involved the allocation of power to one or more branches of a government; and we surely would have dismissed suits arising in the hypothesized fashions.
We have affirmatively rejected arguments for jurisdiction in cases like this one. For example, in Raines, 521 U. S., at 829–830, we refused to allow Members of ​Congress to challenge the Line Item Veto Act, which they claimed “ ‘unconstitutionally expand[ed] the President’s power’ ” and “ ‘alter[ed] the constitutional balance of powers between the Legislative and Executive Branches.’ ” Id., at 816. In Massachusetts v. Mellon, 262 U. S. 447, 479–480 (1923), we refused to allow a State to pursue its claim that a conditional congressional appropriation “constitute[d] an effective means of inducing the States to yield a portion of their sovereign rights.” (And Mellon involved a contention that one government infringed upon another government’s power—far closer to the traditional party-versus-party lawsuit than is an intragovernmental dispute.) We put it plainly: “In the last analysis, the complaint of the plaintiff State is brought to the naked contention that Congress has usurped the reserved powers of the several States,” id., at 483—and because the State could not show a discrete harm except the alleged usurpation of its powers, we refused to allow the State’s appeal.
The sole precedent the Court relies upon is Coleman v. Miller, 307 U. S. 433 (1939). Coleman can be distinguished from the present case as readily as it was distinguished in Raines. In Raines, the accurate-in-fact (but inconsequential-in-principle) distinction was that the Senators in Coleman had their votes nullified, whereas the Members of Congress claimed that their votes could merely be rendered ineffective by a Presidential line-item veto. Raines, supra, at 823–824. In the present case we could make the accurate-in-fact distinction that in Coleman individual legislators were found to have standing, whereas here it is the governmental body, the Arizona Legislature, that seeks to bring suit. But the reality is that the supposed holding of Coleman stands out like a sore thumb from the rest of our jurisprudence, which denies standing for intragovernmental disputes.
Coleman was a peculiar case that may well stand for nothing. The opinion discussing and finding standing, and ​going on to affirm the Kansas Supreme Court, was written by Chief Justice Hughes and announced by Justice Stone. Justice Frankfurter, joined by three other Justices, held there was no standing, and would have dismissed the petition (leaving the judgment of the Kansas Supreme Court in place). Justice Butler, joined by Justice McReynolds, dissented (neither joining Hughes’s opinion nor separately discussing standing) and would have reversed the Kansas Supreme Court.
That adds up to two votes to affirm on the merits, two to reverse on the merits (without discussing standing) and four to dismiss for lack of standing. Justice Stanley Reed, who was on the Court and apparently participated in the case, is not mentioned in any of the opinions recorded in the United States Reports. So, in order to find Coleman a binding precedent on standing, rather than a 4-to-4 standoff, one must assume that Justice Reed voted with Hughes. There is some reason to make that assumption: The four Justices rejecting standing went on to discuss the merits, because “the ruling of the Court just announced removes from the case the question of petitioners’ standing to sue.” 307 U. S., at 456 (Black, J., concurring). But then again, if nine Justices participated, how could it be that on one of the two issues in the case the Court was “equally divided and therefore … expresse[d] no opinion”? Id., at 447.
A pretty shaky foundation for a significant precedential ruling. Besides that, the two dissenters’ mere assumption of standing—neither saying anything about the subject nor joining Hughes’s opinion on the point—produces (if you assume Reed joined Hughes) a majority for standing but no majority opinion explaining why. And even under the most generous assumptions, since the Court’s judgment on the issue it resolved rested on the ground that that issue presented a political question—which is itself a rejection of jurisdiction, Zivotofsky v. Clinton, 566 U. S. ​___ (2012) (slip op., at 5)—Coleman’s discussion of the additional jurisdictional issue of standing was quite superfluous and arguably nothing but dictum. The peculiar decision in Coleman should be charitably ignored.
The Court asserts, quoting Raines, 521 U. S., at 819–820, that the Court’s standing analysis has been “especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Ante, at 14, n. 12. The cases cited to support this dictum fail to do so; they are merely cases where a determination of unconstitutionality is avoided by applying what there is no reason to believe is anything other than normal standing requirements. It seems to me utterly implausible that the Framers wanted federal courts limited to traditional judicial cases only when they were pronouncing upon the rights of Congress and the President, and not when they were treading upon the powers of state legislatures and executives. Quite to the contrary, I think they would be all the more averse to unprecedented judicial meddling by federal courts with the branches of their state governments.
I would dismiss this case for want of jurisdiction. *** Normally, having arrived at that conclusion, I would express no opinion on the merits unless my vote was necessary to enable the Court to produce a judgment. In the present case, however, the majority’s resolution of the merits question (“legislature” means “the people”) is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.