DOMA oral arguments at the Supreme Court: an in-depth look at questions of standing and jurisdiction
March 27, 2013
By Jacob Combs
Part Two: questions of standing and jurisdiction
This post and my next will take a deeper dive into the two separate sections of today’s oral arguments. A caveat: these may still be somewhat wonky because the arguments themselves certainly were. For the most part, Justices’ questions here are my paraphrases, not direct quotes, since it was very, very difficult to write down full quotes as I was furiously writing on my steno pad. Direct quotes are in quotation marks. Here goes!
The first lawyer up to argue was Vicki Jackson, a Harvard Law professor whom the Court appointed to take the position that BLAG does not have standing to defend DOMA and that the Supreme Court has no jurisdiction over the Windsor case since the federal government agrees with Edie Windsor that DOMA is unconstitutional. Her central arguments were simple: the federal government is only asking the Supreme Court to affirm the lower courts’ decisions, as opposed to asking for redress, which is the traditional remedy that courts can supply, and BLAG cannot point to any cognizable injury that it would suffer if DOMA were overturned.
Justice Scalia asked why the district court hadn’t simply ordered the federal government to refund Edie Windsor’s money without deciding the merits of DOMA, since the federal government argued against DOMA at that court (after modifying its position from its original defense of the law). Justice Breyer likened the president’s position to that of a trustee who feels obligated to obtain a final, authoritative decision on a question of law before relinquishing some of the trust’s money, even if he or she were to agree with the legal decision on the law. Kennedy seemed to agree that there was an injury in the Windsor case for the government, with Kagan jumping onto his point to say that whether the government is “happy or sad” to pay the tax refund, there nevertheless is a fiduciary injury. Justices Sotomayor and Breyer seemed on board with this reasoning.
As I mentioned before, Chief Justice Roberts told Deputy Solicitor General Sri Srinivasan that the federal government’s argument that it could appeal a ruling where all parties are pleased by the decision would be “wholly unprecedented.” Scalia expressed deep discomfort with the idea, calling it a strange new world where the Attorney General could simply choose not to defend laws, which he worried would bring many more cases like Windsor (where both parties agree) to the Supreme Court. In defense of the government’s position, Srinivasan quoted a previous Supreme Court decision, INS v. Chadha, which held that the United States is the aggrieved party in any ruling against it, even if it agrees with the ruling. Justice Sotomayor steered Srinivasan to the question of BLAG’s standing, to which he also quoted Chadha, which he argued suggested the houses of Congress should join cases through amicus status rather than as full parties.
Arguing for BLAG, Paul Clement read Chadha to the reverse effect, arguing that it in fact points to the House as the proper party to defend a law in court if the executive won’t. Chief Justice Roberts pushed back on Clement: could Congress file to join a lawsuit if it didn’t like the executive’s arguments in defense of the a law it had passed? Kagan then jumped in: could the House try to join a lawsuit if the attorney general decided to interpret a law more narrowly than it liked? Kennedy asked if the Senate could join as a party to defend DOMA–which Clement said it could not–while Justice Alito asked why one house of Congress alone should be able to defend a law when it takes both of them to pass one. Clement also ridiculed a motion to dismiss filed by the federal government when the Windsor case was in the district court that the government wrote was essentially for the purposes of creating a suitable appeal. In response, Justice Kennedy admitted that that brief’s intricate argumentation could give any reasonable reader “intellectual whiplash.”
Long story short, it seemed unclear from today’s oral arguments whether the Supreme Court will get past the standing questions to consider DOMA on the merits. From the Justices’ questioning, there didn’t look like much support for the contention that BLAG has standing to join the case as a party. But the question of whether the United States can appeal a decision that it agrees with is much more central to the Windsor case: if the Court finds the appeal was invalid, it simply will not be able to rule on the merits of the law. Justice Kennedy and the court’s liberals did seem to lean towards the idea that the Court does have jurisdiction since there was a fiduciary injury to the United States. That means the Court will probably issue a decision on the merits.