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Washington Law Review

Abstract

In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to supposedly governing doctrine. Based on the findings reported in Pierce’s article, one might expect to find Ninth Circuit judges splitting along predictable ideological lines. In this brief survey, I find that some Ninth Circuit panels on which Judge Fletcher has sat do split along ideological lines, but that most are unanimous in their justiciability rulings even when the panels are ideologically mixed—and one finds variations, such as splits among judges appointed by Democratic Presidents and generally regarded as “liberal.” Another possible tendency would be for judges to find justiciability when they might be expected to be favorably disposed to the substantive claim on the merits, and to avoid reaching the merits of what might be unappealing claims. Similarly, in some cases on which Judge Fletcher has sat, some judges’ votes could be viewed as fitting such patterns, but counterexamples abound. This essay, which focuses on the work of one judge and does not systematically compare votes of judges from different parts of the political spectrum, cannot claim to disprove the political view; but that view finds little if any support in Judge Fletcher’s cases.

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