Hollingsworth v. Perry , 133 S. Ct. 2652 ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being 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 been
prepared 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 op-
posite-sex couples violated the California Constitution, state voters
passed a ballot initiative known as Proposition 8, amending the State
Constitution 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 naming
as defendants California’s Governor and other state and local officials
responsible for enforcing California’s marriage laws. The officials re-
fused 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 en-
joined the public officials named as defendants from enforcing the
law. 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 as-
sert the State’s interest in defending the constitutionality of the ini-
tiative when public officials refuse to do so. After the California Su-
preme Court answered in the affirmative, the Ninth Circuit
concluded that petitioners had standing under federal law to defend
Proposition 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’s
order. Pp. 5–17.
(a) Article III of the Constitution confines the judicial power of fed-
eral courts to deciding actual “Cases” or “Controversies.” §2. One es-
sential aspect of this requirement is that any person invoking the
power of a federal court must demonstrate standing to do so. In oth-
2 HOLLINGSWORTH v. PERRY
Syllabus
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 that
an “actual controversy” persist throughout all stages of litigation. Al-
ready, LLC v. Nike, Inc., 568 U.S. ___, ___. Standing “must be met
by persons seeking appellate review, just as it must be met by per-
sons appearing in courts of first instance.” Arizonans for Official
English v. Arizona, 520 U.S. 43, 64. The parties do not contest that
respondents had standing to initiate this case against the California
officials responsible for enforcing Proposition 8. But once the District
Court issued its order, respondents no longer had any injury to re-
dress, and the state officials chose not to appeal. The only individu-
als who sought to appeal were petitioners, who had intervened in the
District Court, but they had not been ordered to do or refrain from
doing anything. Their only interest was to vindicate the constitu-
tional 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 Califor-
nia Constitution and election laws give them a “ ‘unique,’ ‘special,’
and ‘distinct’ role in the initiative process,” Reply Brief 5, but that is
only 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 up-
holding Proposition 8, that is not a particularized interest sufficient
to 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 re-
lief 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 de-
fend the constitutionality of Illinois’ abortion law after the State
chose not to appeal an adverse ruling. The state attorney general’s
“letter of interest,” explaining that the State’s interest in the proceed-
ing was “ ‘essentially co-terminous with’ ” Diamond’s position, id., at
61, was insufficient, since Diamond was unable to assert an injury of
his own, id, at 65. Pp. 9–10.
(2) Petitioners contend the California Supreme Court’s determi-
Cite as: 570 U. S. ____ (2013) 3
Syllabus
nation that they were authorized under California law to assert the
State’s interest in the validity of Proposition 8 means that they “need
no more show a personal injury, separate from the State’s indisputa-
ble interest in the validity of its law, than would California’s Attor-
ney 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 re-
fused to defend the constitutionality of a state law, leaders of New
Jersey’s Legislature were permitted to appear, in their official capaci-
ties, 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 leadership
positions, but nevertheless sought to appeal to this Court. The Court
held that they could not do so. Although they could participate in the
lawsuit in their official capacities as presiding officers of the legisla-
ture, as soon as they lost that capacity, they lost standing. Id., at 81.
Petitioners here hold no office and have always participated in this
litigation 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 of
an Arizona initiative, the Court noted that it was “aware of no Arizo-
na law appointing initiative sponsors as agents of the people of Ari-
zona to defend, in lieu of public officials, the constitutionality of initi-
atives made law of the State.” Id., 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.
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 meas-
ure” in federal court. 628 F.3d 1191, 1193. That interest is by defi-
nition a generalized one, and it is precisely because proponents assert
such an interest that they lack standing under this Court’s prece-
dents. Petitioners are also plainly not agents of the State. As an ini-
tial matter, petitioners’ newfound claim of agency is inconsistent with
their representations to the District Court, where they claimed to
represent 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, “the
proponents apparently have an unelected appointment for an unspec-
ified period of time as defenders of the initiative, however and to
4 HOLLINGSWORTH v. PERRY
Syllabus
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 to
maintain an initiative process, or the right of initiative proponents to
defend their initiatives in California courts. But standing in federal
court is a question of federal law, not state law. No matter its rea-
sons, the fact that a State thinks a private party should have stand-
ing to seek relief for a generalized grievance cannot override this
Court’s settled law to the contrary. Article III’s requirement that a
party invoking the jurisdiction of a federal court seek relief for a per-
sonal, particularized injury serves vital interests going to the role of
the Judiciary in the federal system of separated powers. States can-
not 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 dis-
senting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that 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 the
Court.
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 marriage
as the union of a man and a woman.” Pet. for Cert. i.
Respondents, same-sex couples who wish to marry, view
the issue in somewhat different terms: For them, it is
whether California—having previously recognized the
right of same-sex couples to marry—may reverse that
decision through a referendum.
Federal courts have authority under the Constitution to
answer 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 every
sort of dispute, but only those “historically viewed as
capable of resolution through the judicial process.” Flast
v. Cohen, 392 U.S. 83, 95 (1968). This is an essential
2 HOLLINGSWORTH v. PERRY
Opinion of the Court
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 court
have a keen interest in the issue. That party must also
have “standing,” which requires, among other things, that
it have suffered a concrete and particularized injury.
Because we find that petitioners do not have standing, we
have no authority to decide this case on the merits, and
neither did the Ninth Circuit.
I
In 2008, the California Supreme Court held that limit-
ing the official designation of marriage to opposite-sex
couples violated the equal protection clause of the Califor-
nia 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 as
Proposition 8. That proposition amended the California
Constitution to provide that “[o]nly marriage between a
man 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 the
amendment, 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, Proposition
8 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 relation-
ships recognized by the State as “domestic partnerships,”
which carry “the same rights, protections, and benefits,
and shall be subject to the same responsibilities, obliga-
tions, and duties under law . . . as are granted to and
Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
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 Constitution
further guarantees same-sex couples “all of the constitu-
tionally based incidents of marriage,” including the right
to have that marriage “officially recognized” as such by the
State. 43 Cal. 4th, at 829, 183 P. 3d, at 433–434. Proposi-
tion 8, the court explained in Strauss, left those rights
largely undisturbed, reserving only “the official designa-
tion 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 under
the 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 offi-
cials responsible for enforcing California’s marriage laws.
Those officials refused to defend the law, although they
have continued to enforce it throughout this litigation.
The District Court allowed petitioners—the official propo-
nents of the initiative, see Cal. Elec. Code Ann. §342 (West
2003)—to intervene to defend it. After a 12-day bench
trial, the District Court declared Proposition 8 uncon-
stitutional, permanently enjoining the California officials
named as defendants from enforcing the law, and “direct-
ing 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 Court
order. When petitioners did, the Ninth Circuit asked
them 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 brief-
4 HOLLINGSWORTH v. PERRY
Opinion of the Court
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 possess
either a particularized interest in the initiative’s valid-
ity or the authority to assert the State’s interest in the
initiative’s validity, which would enable them to de-
fend the constitutionality of the initiative upon its
adoption or appeal a judgment invalidating the initia-
tive, when the public officials charged with that duty
refuse to do so.” Perry v. Schwarzenegger, 628 F.3d
1191, 1193 (2011).
The California Supreme Court agreed to decide the
certified question, and answered in the affirmative. With-
out addressing whether the proponents have a particular-
ized interest of their own in an initiative’s validity, the
court concluded that “[i]n a postelection challenge to a
voter-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 meas-
ure when 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).
Relying on that answer, the Ninth Circuit concluded
that petitioners had standing under federal law to defend
the constitutionality of Proposition 8. California, it rea-
soned, “ ‘has standing to defend the constitutionality of its
[laws],’ ” and States have the “prerogative, as independent
sovereigns, 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
Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
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 in
remedying 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 “the
Equal Protection Clause requires the state to have a legit-
imate 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. Proposition
8, 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 “Controver-
sies.” §2. One essential aspect of this requirement is that
any person invoking the power of a federal court must
demonstrate standing to do so. This requires the litigant
to prove that he has suffered a concrete and particularized
injury that is fairly traceable to the challenged conduct,
and is likely to be redressed by a favorable judicial deci-
6 HOLLINGSWORTH v. PERRY
Opinion of the Court
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, the
party 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 to
meet Art. III’s requirements.” Diamond, supra, at 62.
The doctrine of standing, we recently explained, “serves
to prevent the judicial process from being used to usurp
the powers of the political branches.” Clapper v. Amnesty
Int’l USA, 568 U.S. ___, ___ (2013) (slip op., at 9). In light
of this “overriding and time-honored concern about keep-
ing the Judiciary’s power within its proper constitu-
tional sphere, we must put aside the natural urge to
proceed directly to the merits of [an] important dispute
and to ‘settle’ it for the sake of convenience and effi-
ciency.” 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 throughout
all 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 Court
against the California officials responsible for enforcing
Proposition 8. The parties do not contest that respondents
had Article III standing to do so. Each couple expressed a
desire to marry and obtain “official sanction” from the
State, which was unavailable to them given the declara-
tion in Proposition 8 that “marriage” in California is solely
Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
between a man and a woman. App. 59.
After the District Court declared Proposition 8 unconsti-
tutional and enjoined the state officials named as defend-
ants from enforcing it, however, the inquiry under Article
III changed. Respondents no longer had any injury to
redress—they had won—and the state officials chose not
to appeal.
The only individuals who sought to appeal that order
were petitioners, who had intervened in the District
Court. But the District Court had not ordered them to do
or refrain from doing anything. To have standing, a liti-
gant must seek relief for an injury that affects him in
a “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 District
Court order reversed was to vindicate the constitutional
validity of a generally applicable California law.
We have repeatedly held that such a “generalized griev-
ance,” no matter how sincere, is insufficient to confer
standing. A litigant “raising only a generally available
grievance about government—claiming only harm to his
and every citizen’s interest in proper application of the
Constitution and laws, and seeking relief that no more
directly 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 has
a lengthy pedigree.”); Allen v. Wright, 468 U.S. 737, 754
(1984) (“an asserted right to have the Government act in
accordance 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
8 HOLLINGSWORTH v. PERRY
Opinion of the Court
the [ judicial] power must be able to show . . . that he has
sustained or is immediately in danger of sustaining some
direct injury . . . and not merely that he suffers in some
indefinite way in common with people generally.”).
Petitioners argue that the California Constitution and
its election laws give them a “ ‘unique,’ ‘special,’ and ‘dis-
tinct’ role in the initiative process—one ‘involving both
authority and responsibilities that differ from other sup-
porters 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 pro-
cess of enacting the law. Upon submitting the proposed
initiative 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 argu-
ments in favor of the initiative that would appear in Cali-
fornia’s ballot pamphlets. §§9064, 9065, 9067, 9069.
But once Proposition 8 was approved by the voters, the
measure became “a duly enacted constitutional amend-
ment or statute.” 52 Cal. 4th, at 1147, 265 P. 3d, at 1021.
Petitioners have no role—special or otherwise—in the
enforcement 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 its
enforcement that is distinguishable from the general
interest of every citizen of California. Defenders of Wild-
life, 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
Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
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 ini-
tiative 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. They
assert that even if they have no cognizable interest in
appealing 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 litigant
must assert his or her own legal rights and interests,
and cannot rest a claim to relief on the legal rights or inter-
ests 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] a
sufficiently 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 in
Illinois, to defend the constitutionality of the State’s abor-
tion law. In that case, a group of physicians filed a con-
10 HOLLINGSWORTH v. PERRY
Opinion of the Court
stitutional challenge to the Illinois statute in federal
court. The State initially defended the law, and Diamond,
a professed “conscientious object[or] to abortions,” in-
tervened to defend it alongside the State. 476 U. S., at
57–58.
After the Seventh Circuit affirmed a permanent injunc-
tion 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 cir-
cumstances 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 (footnote
omitted). And without “any judicially cognizable interest,”
Diamond could not “maintain the litigation abandoned by
the State.” Id., at 71.
For the reasons we have explained, petitioners have
likewise 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 assert
the 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 in
remedying that harm.” 671 F. 3d, at 1072. As petitioners
Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
put it, they “need no more show a personal injury, sepa-
rate 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.
In Karcher, we held that two New Jersey state legis-
lators—Speaker of the General Assembly Alan Karcher
and President of the Senate Carmen Orechio—could inter-
vene in a suit against the State to defend the constitutionality
of a New Jersey law, after the New Jersey attorney gen-
eral 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 Court
and 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 legislators
in 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 continued
enforceability” of its laws that is harmed by a judicial
decision declaring a state law unconstitutional. Maine v.
Taylor, 477 U.S. 131, 137 (1986). To vindicate that inter-
est or any other, a State must be able to designate agents
to represent it in federal court. See Poindexter v. Green-
how, 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 presid-
ing 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,
12 HOLLINGSWORTH v. PERRY
Opinion of the Court
but nevertheless sought to appeal to this Court. We held
that they could not do so. We explained that while they
were able to participate in the lawsuit in their official
capacities as presiding officers of the incumbent legisla-
ture, “since they no longer hold those offices, they lack
authority 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 and
Orechio were permitted to proceed only because they were
state 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 this
litigation solely as private parties.
The cases relied upon by the dissent, see post, at 11–12,
provide petitioners no more support. The dissent’s primary
authorities, 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 establish-
ing 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 spe-
cial 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 would
suppose that they are not subject to the ultimate au-
thority of the court that appointed them. See also Prov-
idence Journal, supra, at 698–707 (recognizing further
control 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
Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
based on a partial assignment of the Government’s dam-
ages claim and a “well nigh conclusive” tradition of such
actions in English and American courts dating back to the
13th century); Whitmore v. Arkansas, 495 U.S. 149, 162–
164 (1989) (justifying “next friend” standing based on a
similar history dating back to the 17th century, requiring
the next friend to prove a disability of the real party in
interest and a “significant relationship” with that party);
Gollust v. Mendell, 501 U.S. 115, 124–125 (1990) (requir-
ing plaintiff in shareholder-derivative suit to maintain a
financial 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-or-
controversy 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 English
filed a constitutional challenge to an Arizona ballot initia-
tive declaring English “ ‘the official language of the State
of Arizona.’ ” Id., at 48. After the District Court declared
the initiative unconstitutional, Arizona’s Governor an-
nounced that she would not pursue an appeal. Instead,
the principal sponsor of the ballot initiative—the Arizo-
nans for Official English Committee—sought to defend the
measure in the Ninth Circuit. Id., at 55–56, 58. Analogiz-
ing the sponsors to the Arizona Legislature, the Ninth
Circuit 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, this
Court 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 original
defendant . . . demands that the litigant possess ‘a direct
14 HOLLINGSWORTH v. PERRY
Opinion of the Court
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 satisfy
standing 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 Su-
preme 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 of
the people,” or of anyone else. Nor did the Ninth Circuit.
The Ninth Circuit asked—and the California Supreme
Court answered—only whether petitioners had “the au-
thority to assert the State’s interest in the initiative’s
validity.” 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 con-
cerned, petitioners may argue in defense of Proposition 8.
This “does not mean that the proponents become de facto
public officials”; the authority they enjoy is “simply the
authority to participate as parties in a court action and to
assert 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 with
their representations to the District Court. When the
proponents sought to intervene in this case, they did not
Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
purport to be agents of California. They argued instead
that “no other party in this case w[ould] adequately rep-
resent their interests as official proponents.” Motion to
Intervene in No. 09–2292 (ND Cal.), p. 6 (emphasis
added). It was their “unique legal status” as official
proponents—not an agency relationship with the people of
California—that petitioners claimed “endow[ed] them with
a significantly protectable interest” in ensuring that the
District Court not “undo[ ] all that they ha[d] done in
obtaining . . . 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 Restate-
ment). Yet petitioners answer to no one; they decide for
themselves, 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 unspeci-
fied 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 princi-
pal.” 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 of
office. E.g., Cal. Const., Art. XX, §3 (prescribing the oath
for “all public officers and employees, executive, legisla-
tive, and judicial”). As the California Supreme Court
explained, petitioners are bound simply by “the same
ethical constraints that apply to all other parties in a legal
16 HOLLINGSWORTH v. PERRY
Opinion of the Court
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 state
priorities.
Finally, the California Supreme Court stated that “[t]he
question of who should bear responsibility for any attorney
fee award . . . is entirely distinct from the question” before
it. Id., at 1161, 265 P. 3d, at 1031. (emphasis added). But
it is hornbook law that “a principal has a duty to indem-
nify the agent against expenses and other losses incurred
by the agent in defending against actions brought by third
parties if the agent acted with actual authority in taking
the action challenged by the third party’s suit.” 2 Re-
statement §8.14, Comment d. If the issue of fees is entirely
distinct from the authority question, then authority cannot
be based on agency.
Neither the California Supreme Court nor the Ninth
Circuit ever described the proponents as agents of the
State, and they plainly do not qualify as such.
IV
The dissent eloquently recounts the California Supreme
Court’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 a
question of federal law, not state law. And 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 our settled law to the contrary.
Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
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 the
courts in a democratic society,” DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks
omitted). States cannot alter that role simply by issuing
to private parties who otherwise lack standing a ticket to
the federal courthouse.
* * *
We have never before upheld the standing of a private
party to defend the constitutionality of a state statute
when state officials have chosen not to. We decline to do
so for the first time here.
Because petitioners have not satisfied their burden to
demonstrate standing to appeal the judgment of the Dis-
trict 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.
Cite as: 570 U. S. ____ (2013) 1
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 Supreme
Court 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 the
justiciability question requires, in this case, a threshold
determination of state law. The state-law question is how
California 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 to
appear in court and assert the State’s interest in defend-
ing an enacted initiative when the public officials charged
with that duty refuse to do so. The State deems such an
appearance essential to the integrity of its initiative pro-
cess. Yet the Court today concludes that this state-defined
status and this state-conferred right fall short of meeting
federal requirements because the proponents cannot point
to a formal delegation of authority that tracks the re-
quirements of the Restatement of Agency. But the State
Supreme Court’s definition of proponents’ powers is bind-
2 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
ing on this Court. And that definition is fully sufficient to
establish the standing and adversity that are requisites
for justiciability under Article III of the United States
Constitution.
In my view Article III does not require California, when
deciding who may appear in court to defend an initiative
on its behalf, to comply with the Restatement of Agency or
with this Court’s view of how a State should make its laws
or structure its government. The Court’s reasoning does
not take into account the fundamental principles or the
practical 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 sys-
tem and which, like California, may choose to have initia-
tive 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 proceedings
after the State Executive acquiesced in the District Court’s
adverse judgment, it is necessary to ascertain what per-
sons, if any, have “authority under state law to represent
the State’s interests” in federal court. Karcher v. May, 484
Cite as: 570 U. S. ____ (2013) 3
KENNEDY, J., dissenting
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 or
rights of proponents once the initiative becomes law. Ante,
at 8. If that were the end of the matter, the Court’s analy-
sis would have somewhat more force. But it is not the end
of the matter. It is for California, not this Court, to de-
termine whether and to what extent the Elections Code
provisions are instructive and relevant in determining the
authority of proponents to assert the State’s interest in
postenactment 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 judi-
cial 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 certified
question submitted to it in this case, has determined that
State 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 held
that proponents do have authority “under California law
to appear and assert the state’s interest in the initiative’s
validity and appeal a judgment invalidating the measure
when the public officials who ordinarily defend the meas-
ure 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
4 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
holding have special relevance in the context of determin-
ing 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 are
a 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 official
ballot pamphlet). They know and understand the purpose
and operation of the proposed law, an important requisite
in defending initiatives on complex matters such as taxa-
tion and insurance. Having gone to great lengths to con-
vince voters to enact an initiative, they have a stake in the
outcome 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 voter-
approved measure that makes them especially likely to be
reliable and vigorous advocates for the measure and to
be so viewed by those whose votes secured the initiative’s
enactment 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 the
interests of the voters who adopted the initiative into
law”). Proponents’ authority under state law is not a
contrivance. It is not a fictional construct. It is the prod-
uct of the California Constitution and the California Elec-
tions Code. There is no basis for this Court to set aside
the California Supreme Court’s determination of state
Cite as: 570 U. S. ____ (2013) 5
KENNEDY, J., dissenting
law.
The Supreme Court of California explained that its
holding was consistent with recent decisions from other
States. 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 protecta-
ble interest in” the lawsuit challenging that interpreta-
tion, 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’s
direct interest in legislation enacted through the initiative
process and the concomitant need to avoid the appearance
of [a conflict of interest] will ordinarily preclude courts
from 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 propo-
nents “the authority . . . to assert the state’s interest in the
validity 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.
6 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
II
A
The Court concludes that proponents lack sufficient
ties to the state government. It notes that they “are not
elected,” “answer to no one,” and lack “‘a fiduciary obligation’”
to the State. Ante, at 15 (quoting 1 Restatement (Third) of
Agency §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 essen-
tial qualifications to defend the initiative system. The
very object of the initiative system is to establish a law-
making process that does not depend upon state officials.
In California, the popular initiative is necessary to imple-
ment “the theory that all power of government ultimately
resides in the people.” 52 Cal. 4th, at 1140, 265 P. 3d, at
1016 (internal quotation marks omitted). The right to
adopt initiatives has been described by the California
courts as “one of the most precious rights of [the State’s]
democratic process.” Ibid. (internal quotation marks
omitted). That historic role for the initiative system “grew
out of dissatisfaction with the then governing public offi-
cials 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 amendments
or statutory provisions that their elected public officials
had refused or declined to adopt.” Ibid.
The California Supreme Court has determined that this
purpose is undermined if the very officials the initiative
process 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 or
not, “that the interests of [the proponents] were not being
Cite as: 570 U. S. ____ (2013) 7
KENNEDY, J., dissenting
defended vigorously by the executive branch”). Giving the
Governor and attorney general this de facto veto will erode
one of the cornerstones of the State’s governmental struc-
ture. 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 veto
could be substantial. K. Miller, Direct Democracy and the
Courts 106 (2009) (185 of the 455 initiatives approved in
Arizona, 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 initiative
in 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 a
conventional agency relationship is inconsistent with the
history, design, and purpose of the initiative process. The
State may not wish to associate itself with proponents or
their 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 a
formal agent of the State (the initiative’s proponent) argu-
ing 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 an
agency relationship would be. It would make little sense if
it were the Governor or attorney general, for that would
frustrate the initiative system’s purpose of circumventing
elected 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
8 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
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 Restate-
ment (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 State
Supreme Court. It must be remembered that both elected
officials and initiative proponents receive their authority
to speak for the State of California directly from the peo-
ple. The Court apparently believes that elected officials
are 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 subse-
quent 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, all
of which guard against the possibility that initiative pro-
ponents will somehow fall short of the appropriate stan-
dards for federal litigation.
B
Contrary to the Court’s suggestion, this Court’s prece-
dents 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 Presi-
dent of the New Jersey Senate (Orechio) intervened in
Cite as: 570 U. S. ____ (2013) 9
KENNEDY, J., dissenting
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 and
Orechio “had authority under state law to represent the
State’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] granted
applications of the Speaker of the General Assembly and
the President of the Senate to intervene as parties-
respondent on behalf of the legislature in defense of a
legislative enactment,” the Karcher Court held that stand-
ing 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 repre-
sent the State under New Jersey law. This, the Court
held, deprived them of standing. Id., at 81. Here, by
contrast, proponents’ authority under California law is not
contingent on officeholder status, so their standing is
unaffected by the fact that they “hold no office” in Califor-
nia’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 compliance
with 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.
10 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
Both the Court of Appeals and the Supreme Court of
California were mindful of these precedents and sought to
comply with them. The state court, noting the importance
of Arizonans for Official English, expressed its under-
standing that “the high court’s doubts as to the official
initiative proponents’ standing in that case were based, at
least in substantial part, on the fact that the court was not
aware of any ‘Arizona law appointing initiative sponsors
as agents of the people of Arizona to defend . . . the consti-
tutionality 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 that
if a state’s law does authorize the official proponents of an
initiative 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, the
proponents would not have standing to assert the state’s
interest 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 require-
ment. Perry v. Brown, 671 F.3d 1052, 1072–1073 (CA9
2012). Although that panel divided on the proper resolu-
tion of the merits of this case, it was unanimous in con-
cluding 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] held
that 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 assert
the State’s interests in defending the constitutionality of
that 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
Cite as: 570 U. S. ____ (2013) 11
KENNEDY, J., dissenting
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 with
other 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 investigate
and prosecute potential instances of criminal contempt.
Under the Rule, this special prosecutor is not the agent of
the appointing judge; indeed, the prosecutor’s “determina-
tion of which persons should be targets of the investiga-
tion, what methods of investigation should be used, what
information will be sought as evidence,” whom to charge,
and other “decisions . . . critical to the conduct of a prose-
cution, 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]rivate
attorneys appointed to prosecute a criminal contempt
action represent the United States,’ ” United States v. Prov-
idence Journal Co., 485 U.S. 693, 700 (1988). They are
“appointed solely to pursue the public interest in vindica-
tion 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 re-
view, what arguments to make and how to make them” in
defense 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
12 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
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-derivative
suits, 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 interests
of another. That qui tam actions and “next friend” litiga-
tion may have a longer historical pedigree than the initia-
tive 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 its
longtime understanding of the basis for jurisdiction in
representative-party litigation, leaving the law unclear and
the District Court’s judgment, and its accompanying state-
wide injunction, effectively immune from appellate review.
III
There is much irony in the Court’s approach to justicia-
bility in this case. A prime purpose of justiciability is to
ensure vigorous advocacy, yet the Court insists upon
litigation conducted by state officials whose preference is
to lose the case. The doctrine is meant to ensure that
courts are responsible and constrained in their power, but
the Court’s opinion today means that a single district
court can make a decision with far-reaching effects that
cannot be reviewed. And rather than honor the principle
that 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 democratic
election.
The Court’s opinion disrespects and disparages both the
Cite as: 570 U. S. ____ (2013) 13
KENNEDY, J., dissenting
political process in California and the well-stated opinion
of the California Supreme Court in this case. The Califor-
nia 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 inter-
est. 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 a
realm of controversy where the legal community and
society at large are still formulating ideas and approaches
to a most difficult subject. But it is shortsighted to mis-
construe principles of justiciability to avoid that subject.
As the California Supreme Court recognized, “the question
before us involves a fundamental procedural issue that
may 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 or
rejects 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 vigor-
ous adversary arguments to inform the rulings of the
courts.
* * *
In the end, what the Court fails to grasp or accept is the
basic premise of the initiative process. And it is this. The
essence of democracy is that the right to make law rests in
the 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
14 HOLLINGSWORTH v. PERRY
KENNEDY, J., dissenting
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 decision
holding that state law authorizes an enacted initiative’s
proponents to defend the law if and when the State’s usual
legal advocates decline to do so. The Court’s opinion fails
to abide by precedent and misapplies basic principles
of justiciability. Those errors necessitate this respectful
dissent.