JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment.
I join the Court's judgment and Part I of its opinion, and I agree with much of the Court's discussion of.why Dr. Diamond's asserted interests in defending the Illinois Abortion Law do not satisfy the Art. III standing requirement. I write separately, however, because I do not agree with the Court's reasons for rejecting Dr. Diamond's contention that Illinois' presence as an appellee ensures that a justiciable controversy is before us. In my view, Dr. Diamond was not a proper intervenor in the Court of Appeals, and therefore Illinois is not before this Court in any capacity, because Diamond was not authorized to bring this appeal under 28 U.S.C. § 1254(2).
The Court assumes that Diamond could properly bring an appeal under § 1254(2), and therefore that Illinois is present in this Court as an appellee under this Court's Rule 10.4. The Court then asserts that Illinois is not "the functional equivalent of an appellant" by virtue of its status as a party under Rule 10.4. Ante at 476 U. S. 62 -63. On this basis, the Court concludes that Illinois' "failure to invoke our jurisdiction leaves the Court without a case' or `controversy' between appellees and the State of Illinois," ante at 476 U. S. 63 -64, even if Illinois' interests are actually adverse to appellees' interests. I believe this analysis is needlessly inconsistent with this Court's opinion in Director, OWCP v. Perini North River Associates, 459 U. S. 297 (1983), which holds that, once a case is properly brought here, the case-or-controversy requirement can be satisfied even if the parties who are asserting their adverse interests before this Court are not formally aligned as adversaries.
In Perini, an employee injured while performing his job filed a claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act. Id. at 459 U. S. 300. The employer denied that the employee was covered by the Act, and an Administrative Law Judge found for the employer. At that point, the Director, Office of Workers' Compensation Programs, joined the employee in an appeal to the Benefits Review Board. Id. at 459 U. S. 300 -301. The Board affirmed the denial of coverage, and the employee sought review of its decision in the Court of Appeals, where the Director participated as a respondent. Id. at 459 U. S. 301. The Court of Appeals denied the employee's petition, and the Director -but not the employee -filed a petition for certiorari in this Court. Id. at 459 U. S. 301, 459 U. S. 303. The employee did, however, file a brief in support of the Director's petition for certiorari and a brief on the merits after certiorari was granted. Id. at 459 U. S. 303.
In this Court, the employer challenged the Director's standing to seek review of the Court of Appeals' decision. Id. at 459 U. S. 302. Without deciding whether the Director had standing, we held that
the presence of [the employee] as a party respondent arguing for his coverage under the Act assures that an admittedly justiciable controversy is now before the Court.
Id. at 459 U. S. 305. The basis for our holding was the employer's concession that the Director was a proper party respondent before the Court of Appeals. Id. at 459 U. S. 304. As a proper party in the Court of Appeals, the Director had "statutory authority to seek review in this Court" under 28 U.S.C. § 1254(1), which authorizes a grant of certiorari "upon the petition of any party" below. See id. at 459 U. S. 304, and n. 13. Therefore, whether or not the Director had standing in this Court, the Director's petition brought the employee before the Court as a party respondent pursuant to this Court's Rule 19.6. Id. at 459 U. S. 303 -304, and n. 12. Because the employee clearly had standing, and actively asserted his adverse interests in this Court, a live case or controversy was presented. Id. at 459 U. S. 305.
In two important respects, this case is directly analogous to Perini. First, § 1254(2) provides that "a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution… of the United States" may bring an appeal to this Court (emphasis added). Consequently, if Dr. Diamond was a proper party in the Court of Appeals, his statutorily authorized appeal brought this case here, just as the Director's petition for certiorari brought Perini to this Court. Second, since Rule 10.4 parallels, as to appeals in this Court, the provisions of Rule 19.6 for cases which come here by way of certiorari, Illinois' presence as an appellee, like the presence of the employee in Perini as a respondent, can satisfy the requirements of a live case or controversy even if the party who brought the case here lacks standing. I therefore disagree with the Court's apparent conclusion that the mere fact that Illinois is not an appellant ends the inquiry into whether its presence here assures a live case or controversy.
Perini is fairly distinguishable from this case, however, because, in my view, Dr. Diamond was not a proper intervenor, at least not in the Court of Appeals, and consequently was not a "party" authorized to bring an appeal here. Appellees contend that "[i]ntervenor claimed no justiciable interest in any of the four provisions before this Court when he sought to intervene below." Brief for Appellees 14. The Courts of Appeals have expressed differing views as to the relationship between the interest required to confer standing and the interest required to intervene under Rule 24 of the Federal Rules of Civil Procedure. See ante at 476 U. S. 68, and n. 21. Like the Court, I find it unnecessary to decide that question, because the challenge to Diamond's standing subsumes a challenge to the sufficiency of his interest as an intervenor for purposes of Rule 24. Appellees challenged the propriety of Diamond's intervention in the District Court, and, although they did not raise this issue in the Court of Appeals, I believe it may properly be considered, since, under Perini, it bears on whether a justiciable controversy is presented in this Court. If Diamond was not a proper party in the Court of Appeals, his appeal is clearly improper under § 1254(2).
Rule 24(a)(2) provides that a person
shall be permitted to intervene in an action… when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
(Emphasis added.) Rule 24(b)(2) provides that a person
may be permitted to intervene in an action… when an applicant's claim or defense and the main action have a question of law or fact in common…. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(Emphasis added.) The District Court did not explain whether it granted intervention as of right under Rule 24(a)(2) or permissive intervention under Rule 24(b)(2), and hence it is necessary to consider whether the interests Diamond advanced could have made him a proper intervenor on either theory in the Court of Appeals. This Court's decision in Donaldson v. United States, 400 U. S. 517 (1971), establishes that Diamond's asserted interests in the provisions at issue in the Court of Appeals fall well outside the ambit of Rule 24(a)(2), and it is likewise apparent that he was not entitled to permissive intervention under Rule 24(b)(2).
Donaldson held that a taxpayer was not entitled to intervene as of right in a proceeding to enforce an internal revenue summons directed to his former employer, and ordering the employer to produce its records concerning the taxpayer for use in a civil investigation of the taxpayer. The Court recognized that the taxpayer had an interest in the records, because they presumably contained details of payments from his employer to him "possessing significance for federal income tax purposes." Id. at 400 U. S. 531. Nonetheless, since this interest was "nothing more than a desire" by the taxpayer to overcome his employer's "willingness, under summons, to comply and to produce records," the Court held:
This interest cannot be the kind contemplated by Rule 24(a)(2) when it speaks in general terms of 'an interest relating to the property or transaction which is the subject of the action.' What is obviously meant there is a significantly protectable interest.
Ibid.
Clearly, Donaldson's requirement of a "significantly protectable interest" calls for a direct and concrete interest that is accorded some degree of legal protection. See Tiffany Fine Arts, Inc. v. United States, 469 U. S. 310, 469 U. S. 315 (1985) (noting that Donaldson "held that the employee's interest was not legally protectable, and affirmed the denial of the employee's motions for intervention"); New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (CA5 1984) (en banc); Southern Christian Leadership Conference v. Kelley, 241 U.S.App.D.C. 340, 342, 747 F.2d 777, 779 (1984) (per curiam). See also Advisory Committee's Notes on Fed.Rule Civ.Proc. 24, 28 U.S.C.App. p. 567. The abstract interests advanced by Diamond are, if anything, less "significantly protectable" than the interest of the taxpayer in Donaldson, who alleged that the summons was unlawful because it was part of an investigation for purposes of criminal prosecution. See 400 U.S. at 400 U. S. 521. Diamond's speculative claim that his practice may benefit from the Illinois Abortion Law bespeaks a highly contingent financial interest far less tangible than that of the taxpayer in Donaldson, who faced a palpable threat of tax liability; Diamond's "desire that the Illinois Abortion Law as written be obeyed," ante at 476 U. S. 66, should fare no better than the taxpayer's desire to prevent his employer from putting him at risk by complying with the summons; and Diamond's asserted interests as a father and a parent are indistinguishable from the interests of any beneficiary of the provisions of a criminal law.
I discern nothing in any of the provisions of the Illinois Abortion Law that were challenged in the Court of Appeals to suggest that Illinois meant to vest physicians, parents, or daughters with "significantly protectable interest[s]." Illinois enacted a criminal law which it would itself enforce, thereby making violators liable to the public as a whole, not to those members of the public who might in some degree benefit from the law's enactment or enforcement. Under these circumstances, it seems clear as a matter of interpreting Rule 24(a)(2) that only the State has a "significantly protectable interest" in undertaking to defend the standards contained in its criminal law, since there is no indication that Illinois intended to confer legally protectable interests on particular beneficiaries of that law.
Diamond's cause is not helped by Rule 24(b)(2), for he fails to satisfy the Rule's requirement, which has remained intact since it was first adopted in 1938, that "an applicant's claim or defense and the main action have a question of law or fact in common." The words "claim or defense" manifestly refer to the kinds of claims or defenses that can be raised in courts of law as part of an actual or impending law suit, as is confirmed by Rule 24(c)'s requirement that a person desiring to intervene serve a motion stating "the grounds therefor" and "accompanied by a pleading setting forth the claim or defense for which intervention is sought." Thus, although permissive intervention "plainly dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest in the subject of the litigation," SEC v. United States Realty & Improvement Co., 310 U. S. 434, 310 U. S. 459 (1940), it plainly does require an interest sufficient to support a legal claim or defense which is "founded upon [that] interest" and which satisfies the Rule's commonality requirement. Id. at 310 U. S. 460. Dr. Diamond simply has no claim or defense in this sense; he asserts no actual, present interest that would permit him to sue or be sued by appellees, or the State of Illinois, or anyone else, in an action sharing common questions of law or fact with those at issue in this litigation.
This analysis is not affected by any potential liability for attorney's fees to which Diamond may be subject in connection with his intervention in this litigation. I agree with the Court that any such liability is "a byproduct of the suit itself," ante at 467 U. S. 70 -71, and, as such, it cannot have served as a basis for intervention in the Court of Appeals. At oral argument the question was raised whether Diamond, if not a proper intervenor, could nonetheless be considered a party against whom attorney's fees may be awarded to "the prevailing party" under 42 U.S.C. § 1988. That issue, however, is not before this Court, since an award of attorney's fees is "uniquely separable from the cause of action" on the merits, White v. New Hampshire Dept. of Employment Security, 455 U. S. 445, 455 U. S. 452 (1982); FCC v. League of Women Voters of California, 468 U. S. 364, 468 U. S. 373 -375, n. 10 (1984), and the proceedings in the District Court concerning attorney's fees are neither contained in the record before us nor the subject of the questions presented in Diamond's jurisdictional statement. Accordingly, I express no view as to whether an award of attorney's fees against Dr. Diamond would be proper with respect to any proceedings in which he was not a proper intervenor.
Dr. Diamond, then, was not a proper intervenor in the Court of Appeals, although of course it would have been open to that court to allow him to file a brief as an amicus curiae. Accordingly, Dr. Diamond was not authorized to bring an appeal in this Court, and the appeal must be dismissed for want of jurisdiction.