Virginia House of Delegates v. Bethune-Hill

(Slip Opinion) OCTOBER TERM, 2018 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
VIRGINIA HOUSE OF DELEGATES ET AL. v.
BETHUNE-HILL ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
No. 18–281. Argued March 18, 2019—Decided June 17, 2019
After the 2010 census, Virginia redrew legislative districts for the
State’s Senate and House of Delegates. Voters in 12 impacted House
districts sued two state agencies and four election officials (collective-
ly, State Defendants), charging that the redrawn districts were ra-
cially gerrymandered in violation of the Fourteenth Amendment’s
Equal Protection Clause. The House of Delegates and its Speaker
(collectively, the House) intervened as defendants, participating in
the bench trial, on appeal to this Court, and at a second bench trial,
where a three-judge District Court held that 11 of the districts were
unconstitutionally drawn, enjoined Virginia from conducting elec-
tions for those districts before adoption of a new plan, and gave the
General Assembly several months to adopt that plan. Virginia’s At-
torney General announced that the State would not pursue an appeal
to this Court. The House, however, did file an appeal.
Held: The House lacks standing, either to represent the State’s inter-
ests or in its own right. Pp. 3–12.
(a) To cross the standing threshold, a litigant must show (1) a con-
crete and particularized injury, that (2) is fairly traceable to the chal-
lenged conduct, and (3) is likely to be redressed by a favorable deci-
sion. Hollingsworth v. Perry, 570 U.S. 693, 704. Standing must be
met at every stage of the litigation, including on appeal. Arizonans
for Official English v. Arizona, 520 U.S. 43, 64. And as a jurisdic-
tional requirement, standing cannot be waived or forfeited. To ap-
peal a decision that the primary party does not challenge, an interve-
nor must independently demonstrate standing. Wittman v.
Personhuballah, 578 U. S. ___, ___. Pp. 3–4.
(b) The House lacks standing to represent the State’s interests.
2 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
Syllabus
The State itself had standing to press this appeal, see Diamond v.
Charles, 476 U.S. 54, 62, and could have designated agents to do so,
Hollingsworth, 570 U.S., at 710. However, the State did not desig-
nate the House to represent its interests here. Under Virginia law,
authority and responsibility for representing the State’s interests in
civil litigation rest exclusively with the State’s Attorney General.
Virginia state courts permitted the House to intervene to defend leg-
islation in Vesilind v. Virginia State Bd. of Elections, 295 Va. 427,
813 S.E.2d 739, but the House’s participation in Vesilind occurred in
the same defensive posture as did the House’s participation in earlier
phases of this case, when the House did not need to establish stand-
ing. Moreover, the House pointed to nothing in the Vesilind litigation
suggesting that the Virginia courts understood the House to be rep-
resenting the interests of the State itself. Karcher v. May, 484 U.S.
72, distinguished. Throughout this litigation, the House has pur-
ported to represent only its own interests. The House thus lacks au-
thority to displace Virginia’s Attorney General as the State’s repre-
sentative. Pp. 4–7.
(c) The House also lacks standing to pursue this appeal in its own
right. This Court has never held that a judicial decision invalidating
a state law as unconstitutional inflicts a discrete, cognizable injury
on each organ of government that participated in the law’s passage.
Virginia’s Constitution allocates redistricting authority to the “Gen-
eral Assembly,” of which the House constitutes only a part. That fact
distinguishes this case from Arizona State Legislature v. Arizona In-
dependent Redistricting Comm’n, 576 U. S. ___, where Arizona’s
House and Senate—acting together—had standing to challenge the
constitutionality of a referendum that gave redistricting authority
exclusively to an independent commission. The Arizona referendum
was also assailed on the ground that it permanently deprived the leg-
islative plaintiffs of their role in the redistricting process, while the
order challenged here does not alter the General Assembly’s domi-
nant initiating and ongoing redistricting role. Coleman v. Miller, 307
U.S. 433, also does not aid the House here, where the issue is the
constitutionality of a concededly enacted redistricting plan, not the
results of a legislative chamber’s poll or the validity of any counted or
uncounted vote. Redrawing district lines indeed may affect the
chamber’s membership, but the House as an institution has no cog-
nizable interest in the identity of its members. The House has no
prerogative to select its own members. It is a representative body
composed of members chosen by the people. Changes in its member-
ship brought about by the voting public thus inflict no cognizable in-
jury on the House. Sixty-seventh Minnesota State Senate v. Beens,
406 U.S. 187, distinguished. Nor does a court order causing legisla-
Cite as: 587 U. S. ____ (2019) 3
Syllabus
tors to seek reelection in districts different from those they currently
represent affect the House’s representational nature. Legislative dis-
tricts change frequently, and the Virginia Constitution guards
against representational confusion by providing that delegates con-
tinue to represent the districts that elected them, even if their reelec-
tion campaigns will be waged in different districts. In short, the
State of Virginia would rather stop than fight on. One House of its
bicameral legislature cannot alone continue the litigation against the
will of its partners in the legislative process. Pp. 7–12.
Appeal dismissed. Reported below: 326 F. Supp. 3d 128.
GINSBURG, J., delivered the opinion of the Court, in which THOMAS,
SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. ALITO, J., filed a dis-
senting opinion, in which ROBERTS, C. J., and BREYER and KAVANAUGH,
JJ., joined.
Cite as: 587 U. S. ____ (2019) 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. 18–281
_________________
VIRGINIA HOUSE OF DELEGATES, ET AL.,
APPELLANTS v. GOLDEN BETHUNE-HILL, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
[June 17, 2019]
JUSTICE GINSBURG delivered the opinion of the Court.
The Court resolves in this opinion a question of standing
to appeal. In 2011, after the 2010 census, Virginia redrew
legislative districts for the State’s Senate and House of
Delegates. Voters in 12 of the impacted House districts
sued two Virginia state agencies and four election officials
(collectively, State Defendants) charging that the redrawn
districts were racially gerrymandered in violation of the
Fourteenth Amendment’s Equal Protection Clause. The
Virginia House of Delegates and its Speaker (collectively,
the House) intervened as defendants and carried the
laboring oar in urging the constitutionality of the chal-
lenged districts at a bench trial, see Bethune-Hill v. Vir-
ginia State Bd. of Elections, 141 F. Supp. 3d 505 (ED Va.
2015), on appeal to this Court, see Bethune-Hill v. Virginia
State Bd. of Elections, 580 U. S. ___ (2017), and at a sec-
ond bench trial. In June 2018, after the second bench
trial, a three-judge District Court in the Eastern District
of Virginia, dividing 2 to 1, held that in 11 of the districts
“the [S]tate ha[d] [unconstitutionally] sorted voters . . .
based on the color of their skin.” Bethune-Hill v. Virginia
2 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
Opinion of the Court
State Bd. of Elections, 326 F. Supp. 3d 128, 180 (2018).
The court therefore enjoined Virginia “from conducting
any elections . . . for the office of Delegate . . . in the Chal-
lenged Districts until a new redistricting plan is adopted.”
Id., at 227. Recognizing the General Assembly’s “primary
jurisdiction” over redistricting, the District Court gave the
General Assembly approximately four months to “adop[t] a
new redistricting plan that eliminate[d] the constitutional
infirmity.” Ibid.
A few weeks after the three-judge District Court’s rul-
ing, Virginia’s Attorney General announced, both publicly
and in a filing with the District Court, that the State
would not pursue an appeal to this Court. Continuing the
litigation, the Attorney General concluded, “would not be
in the best interest of the Commonwealth or its citizens.”
Defendants’ Opposition to Intervenor-Defendants’ Motion
to Stay Injunction Pending Appeal Under 28 U.S. C.
§1253 in No. 3:14–cv–852 (ED Va.), Doc. 246, p. 1. The
House, however, filed an appeal to this Court, App. to
Juris. Statement 357–358, which the State Defendants
moved to dismiss for want of standing. We postponed
probable jurisdiction, 586 U. S. ___ (2018), and now grant
the State Defendants’ motion. The House, we hold, lacks
authority to displace Virginia’s Attorney General as repre-
sentative of the State. We further hold that the House, as
a single chamber of a bicameral legislature, has no stand-
ing to appeal the invalidation of the redistricting plan
separately from the State of which it is a part. 1
——————
1 After
the General Assembly failed to enact a new redistricting plan
within the four months allowed by the District Court, that court en-
tered a remedial order delineating districts for the 2019 election. The
House has noticed an appeal to this Court from that order as well, and
the State Defendants have moved to dismiss the follow-on appeal for
lack of standing. See Virginia House of Delegates v. Bethune-Hill,
No. 18–1134. In the appeal from the remedial order, the House and the
State Defendants largely repeat the arguments on standing earlier
Cite as: 587 U. S. ____ (2019) 3
Opinion of the Court
I
To reach the merits of a case, an Article III court must
have jurisdiction. “One essential aspect of this require-
ment is that any person invoking the power of a federal
court must demonstrate standing to do so.” Hollingsworth
v. Perry, 570 U.S. 693, 704 (2013). The three elements of
standing, this Court has reiterated, are (1) a concrete and
particularized injury, that (2) is fairly traceable to the
challenged conduct, and (3) is likely to be redressed by a
favorable decision. Ibid. (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–561 (1992)). Although rulings
on standing often turn on a plaintiff ’s stake in initially
filing suit, “Article III demands that an ‘actual contro-
versy’ persist throughout all stages of litigation.” Hol-
lingsworth, 570 U.S., at 705 (quoting Already, LLC v.
Nike, Inc., 568 U.S. 85, 90–91 (2013)). The standing
requirement therefore “must be met by persons seeking
appellate review, just as it must be met by persons ap-
pearing in courts of first instance.” Arizonans for Official
English v. Arizona, 520 U.S. 43, 64 (1997). As a jurisdic-
tional requirement, standing to litigate cannot be waived
or forfeited. And when standing is questioned by a court
or an opposing party, the litigant invoking the court’s
jurisdiction must do more than simply allege a nonobvious
harm. See Wittman v. Personhuballah, 578 U. S. ___, ___–
___ (2016) (slip op., at 5–6). To cross the standing thresh-
old, the litigant must explain how the elements essential
to standing are met.
Before the District Court, the House participated in both
bench trials as an intervenor in support of the State De-
fendants. And in the prior appeal to this Court, the House
participated as an appellee. Because neither role entailed
——————
advanced in this appeal. The House’s claim to standing to pursue an
appeal from the remedial order fares no better than its assertion of
standing here. See post, p. ___.
4 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
Opinion of the Court
invoking a court’s jurisdiction, it was not previously in-
cumbent on the House to demonstrate its standing. That
situation changed when the House alone endeavored to
appeal from the District Court’s order holding 11 districts
unconstitutional, thereby seeking to invoke this Court’s
jurisdiction. As the Court has repeatedly recognized, to
appeal a decision that the primary party does not chal-
lenge, an intervenor must independently demonstrate
standing. Wittman, 578 U. S. ___; Diamond v. Charles,
476 U.S. 54 (1986). We find unconvincing the House’s
arguments that it has standing, either to represent the
State’s interests or in its own right.
II
A
The House urges first that it has standing to represent
the State’s interests. Of course, “a State has standing to
defend the constitutionality of its statute.” Id., at 62. No
doubt, then, the State itself could press this appeal. And,
as this Court has held, “a State must be able to designate
agents to represent it in federal court.” Hollingsworth,
570 U.S., at 710. So if the State had designated the
House to represent its interests, and if the House had in
fact carried out that mission, we would agree that the
House could stand in for the State. Neither precondition,
however, is met here.
To begin with, the House has not identified any legal
basis for its claimed authority to litigate on the State’s
behalf. Authority and responsibility for representing the
State’s interests in civil litigation, Virginia law prescribes,
rest exclusively with the State’s Attorney General:
“All legal service in civil matters for the Common-
wealth, the Governor, and every state department, in-
stitution, division, commission, board, bureau, agency,
entity, official, court, or judge . . . shall be rendered
and performed by the Attorney General, except as
Cite as: 587 U. S. ____ (2019) 5
Opinion of the Court
provided in this chapter and except for [certain judi-
cial misconduct proceedings].” Va. Code Ann. §2.2–
507(A) (2017). 2
Virginia has thus chosen to speak as a sovereign entity
with a single voice. In this regard, the State has adopted
an approach resembling that of the Federal Government,
which “centraliz[es]” the decision whether to seek certiorari
by “reserving litigation in this Court to the Attorney Gen-
eral and the Solicitor General.” United States v. Provi-
dence Journal Co., 485 U.S. 693, 706 (1988) (dismissing a
writ of certiorari sought by a special prosecutor without
authorization from the Solicitor General); see 28 U.S. C.
§518(a); 28 CFR §0.20(a) (2018). Virginia, had it so cho-
sen, could have authorized the House to litigate on the
State’s behalf, either generally or in a defined class of
cases. Hollingsworth, 570 U.S., at 710. Some States have
done just that. Indiana, for example, empowers “[t]he
House of Representatives and Senate of the Indiana Gen-
eral Assembly . . . to employ attorneys other than the
Attorney General to defend any law enacted creating
legislative or congressional districts for the State of Indi-
ana.” Ind. Code §2–3–8–1 (2011). But the choice belongs
to Virginia, and the House’s argument that it has authority
to represent the State’s interests is foreclosed by the
State’s contrary decision.
The House observes that Virginia state courts have
permitted it to intervene to defend legislation. But the
sole case the House cites on this point—Vesilind v. Virginia
State Bd. of Elections, 295 Va. 427, 813 S.E.2d 739
——————
2 The exceptions referenced in the statute’s text are inapposite here.
They include circumstances where, “in the opinion of the Attorney
General, it is impracticable or uneconomical for [the] legal service to be
rendered by him or one of his assistants,” or where the Virginia Su-
preme Court or any of its justices are litigating matters “arising out of
[that court’s] official duties.” §2.2–507(C).
6 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
Opinion of the Court
(2018)—does not bear the weight the House would place
upon it. In Vesilind, the House intervened in support of
defendants in the trial court, and continued to defend the
trial court’s favorable judgment on appeal. Id., at 433–
434, 813 S.E.2d, at 742. The House’s participation in
Vesilind thus occurred in the same defensive posture as
did the House’s participation in earlier phases of this case,
when the House did not need to establish standing. More-
over, the House has pointed to nothing in the Virginia
courts’ decisions in the Vesilind litigation suggesting that
the courts understood the House to be representing the
interests of the State itself.
Nonetheless, the House insists, this Court’s decision in
Karcher v. May, 484 U.S. 72 (1987), dictates that we treat
Vesilind as establishing conclusively the House’s authority
to litigate on the State’s behalf. True, in Karcher, the
Court noted a record, similar to that in Vesilind, of litiga-
tion by state legislative bodies in state court, and concluded
without extensive explanation that “the New Jersey Legis-
lature had authority under state law to represent the
State’s interests . . . .” 484 U.S., at 82. Of crucial signifi-
cance, however, the Court in Karcher noted no New Jersey
statutory provision akin to Virginia’s law vesting the
Attorney General with exclusive authority to speak for the
Commonwealth in civil litigation. Karcher therefore
scarcely impels the conclusion that, despite Virginia’s
clear enactment making the Attorney General the State’s
sole representative in civil litigation, Virginia has desig-
nated the House as its agent to assert the State’s interests
in this Court.
Moreover, even if, contrary to the governing statute, we
indulged the assumption that Virginia had authorized the
House to represent the State’s interests, as a factual mat-
ter the House never indicated in the District Court that it
was appearing in that capacity. Throughout this litiga-
tion, the House has purported to represent its own inter-
Cite as: 587 U. S. ____ (2019) 7
Opinion of the Court
ests. Thus, in its motion to intervene, the House observed
that it was “the legislative body that actually drew the
redistricting plan at issue,” and argued that the existing
parties—including the State Defendants—could not ade-
quately protect its interests. App. 2965–2967. Nowhere
in its motion did the House suggest it was intervening as
agent of the State. That silence undermines the House’s
attempt to proceed before us on behalf of the State. As
another portion of the Court’s Karcher decision clarifies, a
party may not wear on appeal a hat different from the one
it wore at trial. 484 U.S., at 78 (parties may not appeal in
particular capacities “unless the record shows that they
participated in those capacities below”). 3
B
The House also maintains that, even if it lacks standing
to pursue this appeal as the State’s agent, it has standing
in its own right. To support standing, an injury must be
“legally and judicially cognizable.” Raines v. Byrd, 521
U.S. 811, 819 (1997). This Court has never held that a
judicial decision invalidating a state law as unconstitu-
tional inflicts a discrete, cognizable injury on each organ of
government that participated in the law’s passage. The
Court’s precedent thus lends no support for the notion that
one House of a bicameral legislature, resting solely on its
role in the legislative process, may appeal on its own
behalf a judgment invalidating a state enactment.
Seeking to demonstrate its asserted injury, the House
——————
3 Nor can we give ear to the House’s assertion that forfeiture or ac-
quiescence bar the State Defendants from contesting the House’s
authority to represent the State’s interests. See Brief for Appellants
29–30. As earlier observed, standing to sue (or appeal) is a nonwaiv-
able jurisdictional requirement. See supra, at 3. Moreover, even if
forfeiture were not beyond the pale, the State Defendants here could
hardly be held to have relinquished an objection to the House’s partici-
pation in a capacity—on behalf of the State itself—in which the House
was not participating in the District Court.
8 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
Opinion of the Court
emphasizes its role in enacting redistricting legislation in
particular. The House observes that, under Virginia law,
“members of the Senate and of the House of Delegates of
the General Assembly shall be elected from electoral
districts established by the General Assembly.” Va.
Const., Art. 2, §6. The House has standing, it contends,
because it is “the legislative body that actually drew the
redistricting plan,” and because, the House asserts, any
remedial order will transfer redistricting authority from it
to the District Court. Brief for Appellants 23, 26–28 (in-
ternal quotation marks omitted). But the Virginia consti-
tutional provision the House cites allocates redistricting
authority to the “General Assembly,” of which the House
constitutes only a part.
That fact distinguishes this case from Arizona State
Legislature v. Arizona Independent Redistricting Comm’n,
576 U. S. ___ (2015), in which the Court recognized the
standing of the Arizona House and Senate—acting to-
gether—to challenge a referendum that gave redistricting
authority exclusively to an independent commission,
thereby allegedly usurping the legislature’s authority
under the Federal Constitution over congressional redis-
tricting. In contrast to this case, in Arizona State Legisla-
ture there was no mismatch between the body seeking to
litigate and the body to which the relevant constitutional
provision allegedly assigned exclusive redistricting author-
ity. See 576 U. S., at ___–___ (slip op., at 11–12). Just as
individual members lack standing to assert the institu-
tional interests of a legislature, see Raines, 521 U.S., at
829, 4 a single House of a bicameral legislature lacks ca-
pacity to assert interests belonging to the legislature as a
whole.
Moreover, in Arizona State Legislature, the challenged
——————
4 Raines held that individual Members of Congress lacked standing to
challenge the Line Item Veto Act.
Cite as: 587 U. S. ____ (2019) 9
Opinion of the Court
referendum was assailed on the ground that it permanently
deprived the legislative plaintiffs of their role in the redis-
tricting process. Here, by contrast, the challenged order
does not alter the General Assembly’s dominant initiating
and ongoing role in redistricting. Compare Arizona State
Legislature, 576 U. S., at ___ (slip op., at 14) (allegation of
nullification of “any vote by the Legislature, now or in the
future, purporting to adopt a redistricting plan” (internal
quotation marks omitted)), with 326 F. Supp. 3d, at 227
(recognizing the General Assembly’s “primary jurisdiction”
over redistricting and giving the General Assembly first
crack at enacting a revised redistricting plan). 5
Nor does Coleman v. Miller, 307 U.S. 433 (1939), aid
the House. There, the Court recognized the standing of 20
state legislators who voted against a resolution ratifying
the proposed Child Labor Amendment to the Federal
Constitution. Id., at 446. The resolution passed, the
opposing legislators stated, only because the Lieutenant
Governor cast a tie-breaking vote—a procedure the legis-
lators argued was impermissible under Article V of the
Federal Constitution. See Arizona State Legislature, 576
U. S., at ___–___ (slip op., at 13–14) (citing Coleman, 307
U.S., at 446). As the Court has since observed, Coleman
stands “at most” “for the proposition that legislators whose
votes would have been sufficient to defeat (or enact) a
specific legislative Act have standing to sue if that legisla-
tive action goes into effect (or does not go into effect), on
——————
5 Misplaced for similar reasons is the House’s reliance on this Court’s
statements in INS v. Chadha, 462 U.S. 919, 929–931, and nn. 5–6,
939–940 (1983), that the United States House and Senate were “proper
parties” or “adverse parties.” First, it is far from clear that the Court
meant those terms to refer to standing, as opposed to the simple fact
that both Houses of Congress had intervened. In any event, the statute
at issue in Chadha granted each Chamber of Congress an ongoing
power—to veto certain Executive Branch decisions—that each House
could exercise independent of any other body.
10 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
Opinion of the Court
the ground that their votes have been completely nulli-
fied.” Raines, 521 U.S., at 823. Nothing of that sort
happened here. Unlike Coleman, this case does not con-
cern the results of a legislative chamber’s poll or the valid-
ity of any counted or uncounted vote. At issue here, in-
stead, is the constitutionality of a concededly enacted
redistricting plan. As we have already explained, a single
House of a bicameral legislature generally lacks standing
to appeal in cases of this order.
Aside from its role in enacting the invalidated redistrict-
ing plan, the House, echoed by the dissent, see post, at
1–5, asserts that the House has standing because altered
district boundaries may affect its composition. For sup-
port, the House and the dissent rely on Sixty-seventh
Minnesota State Senate v. Beens, 406 U.S. 187 (1972) (per
curiam), in which this Court allowed the Minnesota Sen-
ate to challenge a District Court malapportionment litiga-
tion order that reduced the Senate’s size from 67 to 35
members. The Court said in Beens: “[C]ertainly the [Min-
nesota Senate] is directly affected by the District Court’s
orders,” rendering the Senate “an appropriate legal entity
for purpose of intervention and, as a consequence, of an
appeal in a case of this kind.” Id., at 194.
Beens predated this Court’s decisions in Diamond v.
Charles and other cases holding that intervenor status
alone is insufficient to establish standing to appeal.
Whether Beens established law on the question of stand-
ing, as distinct from intervention, is thus less than pellu-
cid. But even assuming, arguendo, that Beens was, and
remains, binding precedent on standing, the order there at
issue injured the Minnesota Senate in a way the order
challenged here does not injure the Virginia House. Cut-
ting the size of a legislative chamber in half would neces-
sarily alter its day-to-day operations. Among other things,
leadership selection, committee structures, and voting
rules would likely require alteration. By contrast, al-
Cite as: 587 U. S. ____ (2019) 11
Opinion of the Court
though redrawing district lines indeed may affect the
membership of the chamber, the House as an institution
has no cognizable interest in the identity of its members. 6
Although the House urges that changes to district lines
will “profoundly disrupt its day-to-day operations,” Reply
Brief 3, it is scarcely obvious how or why that is so. As the
party invoking this Court’s jurisdiction, the House bears
the burden of doing more than “simply alleg[ing] a nonob-
vious harm.” Wittman, 578 U. S., at ___ (slip op., at 6).
Analogizing to “group[s] other than a legislative body,”
the dissent insists that the House has suffered an “obvi-
ous” injury. Post, at 3. But groups like the string quartet
and basketball team posited by the dissent select their
own members. Similarly, the political parties involved in
the cases the dissent cites, see post, at 3, n. 1 (citing New
York State Bd. of Elections v. Lopez Torres, 552 U.S. 196,
202 (2008), and Eu v. San Francisco County Democratic
Central Comm., 489 U.S. 214, 229–230 (1989)), select
their own leadership and candidates. In stark contrast,
the House does not select its own members. Instead, it is
a representative body composed of members chosen by the
people. Changes to its membership brought about by the
voting public thus inflict no cognizable injury on the
House. 7
The House additionally asserts injury from the creation
of what it calls “divided constituencies,” suggesting that a
——————
6 The dissent urges that changes to district lines will alter the
House’s future legislative output. See post, at 1–5. A legislative
chamber as an institution, however, suffers no legally cognizable injury
from changes to the content of legislation its future members may elect
to enact. By contrast, the House has an obvious institutional interest
in the manner in which it goes about its business.
7 The dissent further suggests that “we must assume that the district-
ing plan enacted by the legislature embodies the House’s judgment”
regarding the best way to select its members. Post, at 4. For the
reasons explained supra, at 7–10, however, the House’s role in the
legislative process does not give it standing to pursue this appeal.
12 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
Opinion of the Court
court order causing legislators to seek reelection in dis-
tricts different from those they currently represent affects
the House’s representational nature. But legislative
districts change frequently—indeed, after every decennial
census—and the Virginia Constitution resolves any confu-
sion over which district is being represented. It provides
that delegates continue to represent the districts that
elected them, even if their reelection campaigns will be
waged in different districts. Va. Const., Art. 2, §6 (“A
member in office at the time that a decennial redistricting
law is enacted shall complete his term of office and shall
continue to represent the district from which he was elected
for the duration of such term of office . . . .”). We see little
reason why the same would not hold true after districting
changes caused by judicial decisions, and we thus foresee
no representational confusion. And if harms centered on
costlier or more difficult election campaigns are cogniza-
ble—a question that, as in Wittman, 578 U. S., at ___–___
(slip op., at 5–6), we need not decide today—those harms
would be suffered by individual legislators or candidates,
not by the House as a body.
In short, Virginia would rather stop than fight on. One
House of its bicameral legislature cannot alone continue
the litigation against the will of its partners in the legisla-
tive process.
* * *
For the reasons stated, we dismiss the House’s appeal
for lack of jurisdiction.
It is so ordered.
Cite as: 587 U. S. ____ (2019) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–281
_________________
VIRGINIA HOUSE OF DELEGATES, ET AL.,
APPELLANTS v. GOLDEN BETHUNE-HILL, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
[June 17, 2019]
JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE
BREYER, and JUSTICE KAVANAUGH join, dissenting.
I would hold that the Virginia House of Delegates has
standing to take this appeal. The Court disagrees for two
reasons: first, because Virginia law does not authorize the
House to defend the invalidated redistricting plan on
behalf of the Commonwealth, see ante, at 4–7, and, sec-
ond, because the imposition of the District Court’s district-
ing plan would not cause the House the kind of harm
required by Article III of the Constitution, see ante, at 7–
12. I am convinced that the second holding is wrong and
therefore will not address the first.
I
Our decision in Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992), identified the three elements that consti-
tute the “irreducible constitutional minimum of standing”
demanded by Article III. A party invoking the jurisdiction
of a federal court must have “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favor-
able judicial decision.” Spokeo, Inc. v. Robins, 578 U. S.
___, ___ (2016) (slip op., at 6). The Virginia House of
Delegates satisfies all those requirements in this case.
I begin with “injury in fact.” It is clear, in my judgment,
2 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
ALITO, J., dissenting
that the new districting plan ordered by the lower court
will harm the House in a very fundamental way. A legis-
lative districting plan powerfully affects a legislative
body’s output of work. Each legislator represents a par-
ticular district, and each district contains a particular set
of constituents with particular interests and views. Cf.,
e.g., App. 165 (noting the “varied factors that can create or
contribute to communities of interest” in districts (House
Committee on Privileges and Elections resolution)). The
interests and views of these constituents generally have
an important effect on everything that a legislator does—
meeting with the representatives of organizations and
groups seeking the legislator’s help in one way or another,
drafting and sponsoring bills, pushing for and participat-
ing in hearings, writing or approving reports, and of
course, voting. When the boundaries of a district are
changed, the constituents and communities of interest
present within the district are altered, and this is likely to
change the way in which the district’s representative does
his or her work. And while every individual voter will end
up being represented by a legislator no matter which
districting plan is ultimately used, it matters a lot how
voters with shared interests and views are concentrated or
split up. The cumulative effects of all the decisions that go
into a districting plan have an important impact on the
overall work of the body.
All of this should really go without saying. After all, it
is precisely because of the connections between the way
districts are drawn, the composition of a legislature, and
the things that a legislature does that so much effort is
invested in drawing, contesting, and defending districting
plans. Districting matters because it has institutional and
legislative consequences. To suggest otherwise, to argue
that substituting one plan for another has no effect on the
work or output of the legislative body whose districts are
changed, would really be quite astounding. If the selection
Cite as: 587 U. S. ____ (2019) 3
ALITO, J., dissenting
of a districting plan did not alter what the legislative body
does, why would there be such pitched battles over redis-
tricting efforts?
What the Court says on this point is striking. According
to the Court, “the House as an institution has no cogniza-
ble interest in the identity of its members,” and thus
suffers no injury from the imposition of a districting plan
that “may affect the membership of the chamber” or the
“content of legislation its future members may elect to
enact.” Ante, at 11, and n. 6 (emphasis deleted). Really?
It seems obvious that any group consisting of members
who must work together to achieve the group’s aims has a
keen interest in the identity of its members, and it follows
that the group also has a strong interest in how its mem-
bers are selected. And what is more important to such a
group than the content of its work?
Apply what the Court says to a group other than a
legislative body and it is immediately obvious that the
Court is wrong. Does a string quartet have an interest in
the identity of its cellist? Does a basketball team have an
interest in the identity of its point guard? Does a board of
directors have an interest in the identity of its chairper-
son? Does it matter to these groups how their members
are selected? Do these groups care if the selection method
affects their performance? Of course.
The Virginia House of Delegates exists for a purpose: to
represent and serve the interests of the people of the
Commonwealth. The way in which its members are se-
lected has a powerful effect on how it goes about this
purpose 1—a proposition reflected by the Commonwealth’s
choice to mandate certain districting criteria in its consti-
——————
1 The Court has not hesitated to recognize this link in other contexts.
See, e.g., New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196,
202 (2008); Eu v. San Francisco County Democratic Central Comm.,
489 U.S. 214, 229–230 (1989).
4 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
ALITO, J., dissenting
tution. See Va. Const., Art. II, §6. As far as the House’s
standing, we must assume that the districting plan enacted
by the legislature embodies the House’s judgment regard-
ing the method of selecting members that best enables it
to serve the people of the Commonwealth. (Whether this
is a permissible judgment is a merits question, not a ques-
tion of standing. Cf. Warth v. Seldin, 422 U.S. 490, 502
(1975)). It therefore follows that discarding that plan and
substituting another inflicts injury in fact.
Our most pertinent precedent supports the standing of
the House on this ground. In Sixty-seventh Minnesota
State Senate v. Beens, 406 U.S. 187 (1972) (per curiam),
we held that the Minnesota Senate had standing to appeal
a district court order reapportioning the Senate’s seats. In
reaching that conclusion, we noted that “certainly” such
an order “directly affected” the Senate. Id., at 194. The
same is true here. There can be no doubt that the new
districting plan “directly affect[s]” the House whose dis-
tricts it redefines and whose legislatively drawn districts
have been replaced with a court-ordered map. That the
Beens Court drew its “directly affect[s]” language from a
case involving a standard reapportionment challenge, see
Silver v. Jordan, 241 F. Supp. 576, 579 (SD Cal. 1964)
(per curiam), aff ’d, 381 U.S. 415 (1965) (per curiam), only
serves to confirm that the House’s injury is sufficient to
demonstrate standing under Beens.
In an effort to distinguish Beens, it is argued that the
District Court decision at issue there, which slashed the
number of senators in half, “ha[d] a distinct and more
direct effect on the body itself than a mere shift in district
lines.” Brief for United States as Amicus Curiae 17; see
Brief for State Appellees 38. But even if the effect of the
court order was greater in Beens than it is here, it is the
existence—not the extent—of an injury that matters for
purposes of Article III standing.
The Court suggests that the effects of the court-ordered
Cite as: 587 U. S. ____ (2019) 5
ALITO, J., dissenting
districting plan in Beens were different from the effects of
the plan now before us because the former concerned the
legislature’s internal operations. See ante, at 10–11. But
even if the imposition of the court-ordered plan in this
case would not affect the internal operations of the House
(and that is by no means clear), it is very strange to think
that changes to such things as “committee structures” and
“voting rules,” see ante, at 10, are more important than
changes in legislative output.
In short, the invalidation of the House’s redistricting
plan and its replacement with a court-ordered map would
cause the House to suffer a “concrete” injury. And as
Article III demands, see Spokeo, 578 U. S., at ___–___ (slip
op., at 6–7), that injury would also be “particularized”
(because it would target the House); “imminent” (because
it would certainly occur if this appeal is dismissed);
“traceable” to the imposition of the new, court-ordered
plan; and “redress[able]” by the relief the House seeks
here. Ibid.
II
Although the opinion of the Court begins by citing the
three fundamental Article III standing requirements just
discussed, see ante, at 3, it is revealing that the Court
never asserts that the effect of the court-ordered plan at
issue would not cause the House “concrete” harm. In-
stead, the Court claims only that any harm would not be
“ ‘judicially cognizable,’ ” ante, at 7; see also ante, at 11.
The Court lifts this term from Raines v. Byrd, 521 U.S.
811, 819 (1997), where the Court held that individual
Members of Congress lacked standing to challenge the
constitutionality of the Line Item Veto Act. But the deci-
sion in Raines rested heavily on federal separation-of-
powers concerns, which are notably absent here. See id.,
at 819–820, 826–829; id., at 832–835 (Souter, J., concur-
ring in judgment). And although the Court does not say so
6 VIRGINIA HOUSE OF DELEGATES v. BETHUNE-HILL
ALITO, J., dissenting
expressly, what I take from its use of the term “judicially
cognizable” injury rather than “concrete” injury is that the
decision here is not really based on the Lujan factors,
which set out the “irreducible” minimum demanded by
Article III. 504 U.S., at 560. Instead, the argument
seems to be that the House’s injury is insufficient for some
other, only-hinted-at reason.
Both the United States, appearing as an amicus, and
the Commonwealth of Virginia are more explicit. The
Solicitor General’s brief argues as follows:
“In the federal system, the Constitution gives Con-
gress only ‘legislative Powers,’ U. S. Const. Art. 1, §1,
and the ‘power to seek judicial relief . . . cannot possi-
bly be regarded as merely in aid of the legislative
function.’ Buckley v. Valeo, 424 U.S. 1, 138 (1976)
(per curiam). As a result, ‘once Congress makes its
choice in enacting legislation, its participation ends.’
Bowsher v. Synar, 478 U.S. 714, 733 (1986). . . . The
same is true here. A branch of a state government
that makes rather than enforces the law does not it-
self have a cognizable Article III interest in the de-
fense of its laws.” Brief for United States as Amicus
Curiae 14–15 (emphasis added).
The Virginia Solicitor General makes a similar argument.
See Brief for State Appellees 42–44.
These arguments are seriously flawed because the
States are under no obligation to follow the Federal Con-
stitution’s model when it comes to the separation of pow-
ers. See Whalen v. United States, 445 U.S. 684, 689, n. 4
(1980); cf. Raines, supra, at 824, n. 8; Arizona State Legis-
lature v. Arizona Independent Redistricting Comm’n, 576
U. S. ___, ___, n. 12 (2015) (slip op., at 14, n. 12). If one
House of Congress or one or more Members of Congress
attempt to invoke the power of a federal court, the court
must consider whether this attempt is consistent with the
Cite as: 587 U. S. ____ (2019) 7
ALITO, J., dissenting
structure created by the Federal Constitution. An interest
asserted by a Member of Congress or by one or both Houses
of Congress that is inconsistent with that structure may
not be judicially cognizable. But I do not see how we can
say anything similar about the standing of state legisla-
tors or state legislative bodies. 2 Cf. Karcher v. May, 484
U.S. 72, 81–82 (1987). The separation of powers (or the
lack thereof ) under a state constitution is purely a matter
of state law, and neither the Court nor the Virginia Solici-
tor General has provided any support for the proposition
that Virginia law bars the House from defending, in its
own right, the constitutionality of a districting plan.
* * *
For these reasons, I would hold that the House of Dele-
gates has standing, and I therefore respectfully dissent.
——————
2 The Court’s observation that the Virginia Constitution gives legisla-
tive districting authority to the General Assembly as a whole—in other
words, to the House of Delegates and the Senate in combination—does
not answer the question. To start, a similar argument against standing
was pressed and rejected in Sixty-seventh Minnesota State Senate v.
Beens, 406 U.S. 187 (1972) (per curiam), see Motion of Appellees to
Dismiss Appeal in O. T. 1971, No. 71–1024, p. 9, and the Court does not
explain why a different outcome is warranted here. Nor am I persuaded
by the Court’s citation of Arizona State Legislature v. Arizona Inde-
pendent Redistricting Comm’n, 576 U. S. ___ (2015). There, the Court
held that the Arizona Legislature had standing to bring a suit aimed at
protecting its redistricting authority. But from the fact that a whole
legislature may have standing to defend its redistricting authority, it
does not follow that the House necessarily lacks standing to challenge a
redistricting decision based on concrete injuries to its institutional
interests. Cf. Spokeo, Inc. v. Robins, 578 U. S. ___, ___, n. 7 (2016) (slip
op., at 8, n. 7).