474
Breyer, J., dissenting
The conclusion that the Government "hindered" Charlie's assertion of his own rights in this case is irresistible.
The Government points out that Charlie might have appealed the adverse Texas District Court ruling. Brief for Respondent 11, n. 2. But appeals take time and money; the transfer of venue left the plaintiffs uncertain about where to appeal; the case was being heard with Lorelyn as plaintiff in any event; and the resulting comparison of costs and benefits (viewed prospectively) likely would have discouraged Charlie's pursuit of the alternative appeal route. The Government's successful dismissal motion thus had practical consequences that "hindered" Charlie at least as much as those we have elsewhere said create "hindrances" sufficient to satisfy this portion of the "third-party standing" test. See, e. g., Campbell, supra, at 398 (criminal defendant can assert rights of racially excluded petit jurors because of "arduous" process surrounding, and small benefits accruing to, juror effort to vindicate own rights); cf. Craig v. Boren, 429 U. S. 190, 193-194 (1976) ("decision . . . to forgo consideration of the constitutional merits . . . to await" another party's identical claim would "foster repetitive and time-consuming litigation under the guise of caution and prudence").
Second, the Government, citing United States v. VerdugoUrquidez, 494 U. S. 259 (1990), and Johnson v. Eisentrager, 339 U. S. 763 (1950), argues that the Fifth Amendment does not protect an alien, such as Lorelyn, living outside the United States. Brief for Respondent 11-12. The rights to be vindicated here, however, are Charlie's, not Lorelyn's. And, in any event, those cases, as Justice Stevens points out, are irrelevant, for the matter at issue here is whether or not Lorelyn is a citizen. See Rogers v. Bellei, 401 U. S. 815 (1971) (considering on the merits a putative citizen's claim that he was a citizen due to the operation of the Fifth Amendment, even though he apparently was living outside the United States at the time he filed suit).
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