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1/ Bethune-Hill II - pp. 6-7 - The Court claims the VA House shouldn't be able to participate on appeal in a different capacity (i.e., on behalf of the State as a whole) than that in which it intervened in the district court.
2/ As the Court itself points out, though (p. 4), the House wasn't required to establish constitutional standing until it sought to take an appeal after the Virginia AG refused to do so. Thus, the House presented this argument at the first time it was required to do so.
3/ Also, Art. III requires federal courts to sua sponte confirm the existence of a justiciable dispute (and they generally must exercise jurisdiciton if one exists). Thus, SCOTUS should be able to consider arguments on the issue regardless of whether the parties raised them below
4/ Moreover, the situation materially changed on appeal once the AG declined to participate. While it might've been inappropriate for the House to represent the interests of the State as an entity while the AG remained in the case, that impediment no longer existed in SCOTUS.
5/ p.9: SCOTUS suggests the House's interests differ, depending on whether it's precluded from participating in 1 redistricting, or all future redistrictings. It seems to me that whatever interest is at stake in each redistricting in the latter case applies equally in the former.
6/ p. 10-11 The Supreme Court's attempt to distinguish Beens is wholly unpersuasive. The Court's key assertion that redistricting does not affect a legislative chamber's day-to-day operations, committee structure, leadership selection, etc. is factually incorrect.
7/ p.11: And Court's likewise incorrect, or at least somewhat objectionable, in saying political parties differ from a legislative chamber b/c they pick their own leaders & candidates. What about open primaries? And to a lesser extent voter elections for party committee members?
8/ I'd also suggest that the extent of the Virginia House's interests and prerogatives are a matter of state constitutional law (whether they're sufficient to give rise to standing in federal court is, of course, governed by fed'l con law).
9/ The majority in Bethune-Hill cited a single state law, one state case, and two state const'l provisions. I think there's an argument a sensitive question of state separation-of-powers like this should've been certified to state supreme court before resolving standing issue.
10/ Requiring bicameral authorization from state legislatures throughout an entire case to even potentially establish standing for most types of claims will greatly limit its frequency. Any legislature where different parties control each house won't be able to join fed'l cases.
11/ The majority didn't really address the alternative (which the House might not have raised), suggested by the dissent that the House is acting as an association of legislators who each have standing to defend the composition of his or her district.
12/ FWIW, page 7 and footnote 2 of the dissent emphasize the underlying state separation-of-powers and constitutional issues in play in the case.
13/ Courts should be skeptical of a gov't entity settling or declining to appeal a case that results in invalidation of a legal authority outside the usually required channels, esp. when those channels are difficult or controlled by other political party papers.ssrn.com/sol3/papers.cf…
14/ It is also very odd that Bethune-Hill did not cite or discuss Windsor at all. That seems to be directly on point (even though I disagree w/ its conclusion that adversity is a prudential, rather than constitutional, component of justiciability).
15/ One other thought about standing: Spokeo emphasized injury-in-fact is about whether the alleged injury is "particularlized" and "concrete." The majority in Bethune-Hill instead suggests that certain particularized, concrete effects on a party might not qualify as "injuries"
16/ I support fed'l court deciding whether a challenged provision has a "particularized" and "concrete" effect on party invoking fed'l juris. See papers.ssrn.com/sol3/papers.cf…. But perhaps whether an effect that meets those requirements qualifies as "harm" should be up to that party?
