INDEPENDENT REDISTRICTING COMM’N
Scalia, J., dissenting
wanton assaults and from the daily aggressions of party spirit. …
“I am inclined to believe this practice of the American courts to be at once most favorable to liberty and to public order. If the judge could only attack the legislator only openly and directly, he would sometimes be afraid to oppose him; and at other times party spirit might encourage him to brave it at every turn. … But the American judge is brought into the political arena independently of his own will. He judges the law only because he is obliged to judge a case. The political question that he is called upon to resolve is connected with the interests of the parties, and he cannot refuse to decide it without a denial of justice.” A. de Tocqueville, Democracy in America 102-03 (P. Bradley ed. 1948).
That doctrine of standing, that jurisdictional limitation upon our powers, does not have as its purpose (as the majority assumes) merely to assure that we will decide disputes in concrete factual contexts that enable “realistic appreciation of the consequences of judicial action,” ante, at 14. To the contrary. “[T]he law of Art. III standing is built on a single basic idea—the idea of separation of powers.” Allen v. Wright, 468 U. S. 737, 752 (1984). It keeps us minding our own business.
We consult history and judicial tradition to determine whether a given “ ‘disput[e is] appropriately resolved through the judicial process.’ ” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (internal quotation marks omitted). What history and judicial tradition show is that courts do not resolve direct disputes between two political branches of the same government regarding their respective powers. Nearly every separation-of-powers case presents questions like the ones in this case. But we have never passed on a separation-of-powers question raised
