At Jurist, Derek Muller (Pepperdine Law): Kerr v. Hickenlooper: Exploring the Tenth Circuit's Dubious Legal Reasoning. It begins:
A novel judicial opinion written on dubious legal grounds can serve as an empty vessel into which hopeful litigants everywhere pour hope. The Tenth Circuit's opinion in Kerr v. Hickenlooper—authorizing legislative standing and finding the Guarantee Clause justiciable—has done just that. But it is unlikely that its holdings will withstand further judicial scrutiny.
And from later on:
The Tenth Circuit's analysis—if affirmed on appeal—would have extraordinary consequences. It would create many more opportunities for individual legislators in each state—and perhaps those in both houses of congress—to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands. Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves—which has been a large part of most states' governance for the past hundred years. Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves—effectively ushering in a power shift away from the people—and their ability to enact policy objectives via popular vote—and towards the federal court system.
I agree (my prior thoughts on this case here). The opportunities for judicial mischief opened up by this decision are jaw-dropping.
I also agree with Professor Muller (as a doctrinal matter) on the standing issue as well. I mentioned this case's political question holding in my first-year Constitutional Law course and then asked my students what other doctrine might prevent a court from reaching the merits. They almost literally leaped out of their chairs shouting "standing!" (which we had covered a few weeks earlier). I then had to explain how the Tenth Circuit dealt with the standing issue. This was not an entirely satisfactory discussion for any of us.
Posted at 6:00 AM