Hollingsworth v. Perry

(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.