Page:Coalition of Clergy, Lawyers, and Professors v. Bush.pdf/16

  are being currently litigated in our nation’s courts by other detainees and their families. See, e.g., Rasul, 215 F.Supp.2d at 57. Presumably, fellow detainees are “truly dedicated” to the interests of the detainees as a group, at least with regard to those common threshold issues, because the interests of the various detainees are identical with regard to those issues. So Coalition, which has not established any nexus or relationship with the detainees, is not as well situated to litigate these common issues as are the detainees who have managed to access our courts. While those detainees are not purporting directly to represent the interests of fellow detainees, they are doing so as a practical matter with regard to the initial jurisdictional issues, and have every incentive to do so well. Although we do not ordinarily permit such virtual representation as a substitute for direct representation of an individual, see Richards v. Jefferson County, 517 U.S. 793, 797–803, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996), here any representation will be “virtual” in the sense that the injured individual will not himself have direction or control of the litigation. Where that is the case—and it is likely to be the case where plaintiffs seek next friend standing but have no cognizable relationship to the detainees—the fact that the pertinent legal issues are being litigated in other suits by individuals with interests identical as to those issues with those of the detainees becomes, for me, decisive. Were the courts to decide in favor of jurisdiction in those cases and the interests of the various detainees on the merits issues then to diverge, the possibility that non-related next friends (using “related” in the broad sense I have posited) might be able to establish standing could be addressed anew.

I stress that the difference between my position and that of the majority is relatively narrow. The majority recognizes that the significant relationship requirement must be a flexible one. I would go a bit further and leave open the possibility that no prior relationship is necessary if (1) the plaintiffs make an affirmative and convincing demonstration of their dedication to the detainees’ best interests, including a showing that they have made a reasonable effort to establish a relationship if none exists; and (2) the plaintiffs also show that the circumstances entirely preclude both the appearance as next friend of anyone with any relationship to the detainees as well as the practical representation of the detainees’ interests in court by others similarly situated.

The distinction between my understanding of the next friend doctrine and that of the majority could matter in another case. It does not matter in this one. I therefore concur.