John Roberts, Alan Dershowitz, and Standing

A few weeks ago, Time Magazine came out with its list of the hundred most influential people in the world. The fact that President Bush was left off the list makes its legitimacy suspect, regardless as to how one would appraise his performance. On the other hand, U.S. Supreme Court Chief Justice John Roberts was included, to the magazine’s credit. Noted showboat defense attorney Alan Dershowitz wrote the article accompanying Robert’s selection. He complimented the new and relatively young Chief Justice (confirmed less than two years ago) as being very qualified for the job. But Dershowitz cast suspicion on Roberts’s early decisions on the high court, claiming that he may be using “standing” to deny cases that could challenge the constitutionality of laws and actions. He implied that Roberts could be using this so-called “technical mechanism” (Dershowitz’s own words) to further his own agenda in a disguised manner so as not to appear biased.

Standing, however, is a fundamental element of law that refers to a plaintiff’s ability to show his or her relevance to the case being brought to the court. It is embedded within the U.S. Constitution and has always had its place in determining the suitability of cases to receive a court hearing. There is a trail of cases that were refused hearings before the Supreme Court because of a lack of standing, going back well before Roberts was there, some of which challenged the constitutionality of laws or actions. Dershowitz himself admitted that he could not as yet see any bias in Roberts’s actions, but would continue to monitor them to see if any developed (in other words, to see if Roberts sometimes becomes lax in invoking standing in order to allow cases to be heard of which he’s inclined to support the plaintiff’s position).

All I see from this is a new Chief Justice who, like all of his predecessors, has his own way of doing things. In his case, that includes emphasizing that parties seeking hearings before him adhere strictly to the rules pertaining to being in standing. It appears to be an effort on his part to make the court a more disciplined body. Once all parties involved accept this and adapt to it, there shouldn’t be a problem. And Dershowitz should not have cast aspersions on Roberts’s objectivity in this article. I am not a fan of Chief Justice Roberts. But painting a picture of him that is unsupported by current facts is unfair.