Karcher v. May

484 U. S. 72

December 1, 1987

New Jersey passed a law allowing for a moment of silence before each school day. Predictably, some folks got the courts to prevent the law’s enforcement on the grounds that it secretly conscripted poor schoolchildren into abject theocratic tyranny. Karcher and Orechio, the Speaker and Senate President of the Legislature, were the only state officials to step forward and defend the law. Unfortunately, during the course of the appeals, both lost their offices, and their successors refused to fight for the law. The question was whether the duo had judicial standing anymore.

Unanimously, the Court ruled that they did not. O’Connor pointed out that Karcher and Orechio had always contended that they were suing in their capacities as Speaker and Senate President, and in no other capacities at all. They could not now backtrack, and claim to be appealing merely in their capacities as individual legislators. To add insult to injury, O’Connor would not vacate the lower court decision on the grounds that there was no one left to appeal. Their successors as Speaker and Senate President could still appeal, and the fact that they chose not to didn’t matter. White, concurring in judgment, said that Karcher and Orechio might be able to try again from scratch in their capacities as legislators.

If there was ever an instance of Court finding any excuse in the world to avoid reaching a case’s merits, this is it. This is one of the most trivial, ticky-tacky, makeweight objections to jurisdiction that I’ve ever seen. And the annoyances in this case don’t end there. Why the heck are state attorney generals allowed to pass on defending a state law? The power of the people to make laws means nothing if no one has a duty to defend them. Finally, I remain amazed by the tenacity with which moment of silence laws were challenged. The objectors really did seem to believe that the asinine and meaningless silent minute was in fact full-blown despotic theocracy. Someone ought to have told these people to chill out.


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