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Dec 14 2012

SCOTUS Names Lawyer on Procedural Issues

The unusual order from the Supreme Court granting cert on the DOMA case just got even more unusual. The court has actually appointed an attorney to present the argument for why they should dismiss the case, either on jurisdictional grounds or on standing grounds.

The Supreme Court on Tuesday chose a Harvard professor of constitutional law, Vicki C. Jackson, to argue that the Court does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act. She will file a brief and appear to argue the two procedural issues that the Court itself had raised in agreeing last Friday to consider DOMA’s validity.

Jackson, who joined the Harvard faculty last year after several years at the Georgetown University Law Center, will contend that the executive branch’s agreement with a lower court that DOMA is invalid takes away the Justices’ authority to rule on DOMA, and that the House of Representatives’ Republican leaders do not have a right to appear in the case under Article III of the Constitution…

The Court presumably reached beyond the two parties in the DOMA case for a lawyer to argue the procedural points, since the parties themselves disagree. The federal government has been willing to allow the House GOP leaders to be in court to defend DOMA’s constitutionality, since the government is no longer doing so, but has raised questions about whether the Republican leaders’ petition is the one the Court should consider on DOMA. In turn, the Republican leaders have contended that, since the government got its way in the Second Circuit Court, it is not a proper party to be appealing this case on DOMA. Professor Jackson, a neutral, will argue against both as the proper parties.

Very interesting. I think this makes it a bit more likely that the court is going to punt on the DOMA case and dismiss it. But the results are likely different depending on which procedural grounds they use. If they decide that BLAG has no standing to defend the law, I don’t know what happens then. It may void the entire case, or at least the appeals court ruling (since I think the DOJ, not BLAG, defended the case at the district court level, and the DOJ clearly had standing). So I’m assuming that this would leave the district court ruling in place, which means DOMA would be unenforceable in the southern part of New York, but not elsewhere. If they leave the appeals court ruling in place, it would be unenforceable in the entire 2nd Circuit.

But if they rule that BLAG has no standing, then what? That would dismiss this particular appeal and presumably void the appeals court ruling as well. But there’s still a pending cert petition from the plaintiff in the case, which the court has not yet answered. Would they then have to deny cert in that case too, since there’s no one with standing to defend the case? I assume that would also leave the district court ruling in place, which means no DOMA in the southern part of New York.

And if they deny standing to BLAG, it seems likely that they would also deny standing to the third-party group that has been defending Prop 8 in the other case as well. So if it’s dismissed for lack of a respondent with standing, it’s likely that both cases will be dismissed. This just gets weirder and weirder.

18 comments

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  1. 1
    D. C. Sessions

    Best of all, they establish a precedent that if nobody will or even can defend a law that’s been upheld in a lower court, the law stands. Maybe even (as in California) the lack of any party with standing to defend the law takes it out of the jurisdiction of all courts.

    Heads explode all over.

  2. 2
    eric

    I’m reminded of the South Park where Cartman goes back in time to watch the founders put together the Constitution. He wants to know which of two interpretations is the right one. Lo and behold, he discovers they were intentionally ambiguous so that the document could be used to support either interpretation.

    The wierder this gets, the more it seems to me that SCOTUS’ intention is to be so legally opaque that they cannot be held directly responsible for a decision in either direction.

  3. 3
    eric

    Best of all, they establish a precedent that if nobody will or even can defend a law that’s been upheld in a lower court, the law stands

    This would be a big shift in the separation/distribution of powers, giving more of it to the executive and taking power from the legislative and judicial branches. It essentially gives the executive a ‘veto’ over legislative and judicial rulings in cases where they choose not to defend a law. As another commenter said, I can see a couple of the conservative members of the court supporting such a change, but I have a really hard time believing five judges would agree to this.

  4. 4
    baal

    Gach, this is why I’m generally disgusted with SCT generally. Screw the standing (prudential issues generally) issues and deal with the merits. Recognize that writing laws to deny normal societal elements on the basis of sex or gender are simply not consistent with the Constitution (equal protection but I could see other basis) and be done with it. I can’t imagine this actually happening but I view their role as one where they must enunciate good principals for a well ordered society. My well ordered society definition does not include underclasses or second class citizens.

  5. 5
    drr1

    The appointment of counsel is certainly not the norm, but it isn’t unheard of, either. In fact, the Court did this very thing in the health care cases last term, appointing counsel to brief and argue the Anti-Injunction Act issue. Likewise, I don’t think we can say the fact that counsel gets appointed means the issue takes on some heightened importance. The Court is looking for an independent voice to argue against both the legislative and executive branches. No one else in the case can do that.

    As to what happens if the Court finds BLAG has no standing, I think I responded to this in a comment to one of Ed’s posts on this case last week. I’m a bit pressed for time, but here’s the abbreviated version. I think BLAG got in during the district court proceedings, with the executive’s blessing. If BLAG lacked Art. III standing to defend, and if the executive refuses to defend, then there’s no one to defend. I think – though I admit I’m not entirely sure – this means the case gets dismissed. Truth is, things get really messy at this point, and that’s one reason, I’m sure, why the Court appointed counsel to brief and argue.

    I’ve seen a number of folks say things like “Well, if BLAG has standing then no one has standing, and that can’t be.” But it can, indeed, be the case that no one has standing to challenge a law, so it seems to follow that there may be cases where no one has standing to defend a law. Too bad Ed isn’t still doing his radio show; this would be a really fun case to kick around on the air.

  6. 6
    whheydt

    I really don’t see why a case for which no defense is presented would have to be dismissed.

    Suppose I have standing to challenge a law as unconstitutional, so I sue the proper governmental agency. If the agency (or any other part of the government that has standing) declines to defend the suit, then why wouldn’t the court let me file for summary judgement (no opposition) or even proceed to trial and present my evidence? Now I grant that with one side presenting their case and the other side not showing up, the court would have relatively little trouble finding for the side that does show up, unless the arguments are completely ridiculous.

    Any other procedure would give the executive branch a sort of “hecklers veto”, enabling them to permit laws to stand without defending those same laws.

  7. 7
    jameshanley

    I haven’t look at others’ arguments, I’ll admit, but working on my own, I’m not able to come up with a good argument for why BLAG doesn’t have standing. And even if there is a reasonable argument, while standing doctrine is a good thing in itself, it clearly ought not be used to create perverse outcomes (e.g., the reason SCOTUS allowed standing in Roe v. Wade to a woman who was no longer pregnant).

  8. 8
    noastronomer

    Apologies for the noob question … What does BLAG stand for? Thanks,

    Mike.

  9. 9
    Ben P

    Gach, this is why I’m generally disgusted with SCT generally. Screw the standing (prudential issues generally) issues and deal with the merits. Recognize that writing laws to deny normal societal elements on the basis of sex or gender are simply not consistent with the Constitution (equal protection but I could see other basis) and be done with it. I can’t imagine this actually happening but I view their role as one where they must enunciate good principals for a well ordered society. My well ordered society definition does not include underclasses or second class citizens

    As a lawyer, I disagree 100% and want you to ask, do you really want the Supreme Court to decide tough cases on the merits if that means you lose?

    The procedural rules are important because they limit the power of the court. The court is there to interpret law, not make policy. That’s the legislature’s job. Caselaw necessarily involves decisions on policy, but only those that can be brought in a properly heard court case. It’s fundamental to the nature of the court.

  10. 10
    ema

    Bipartisan Legal Advisory Group (BLAG), an arm of the House of Representatives

  11. 11
    drr1

    whheydt wrote:

    I really don’t see why a case for which no defense is presented would have to be dismissed.

    If a plaintiff who lacks standing brings suit, the case must be dismissed for lack of subject matter jurisdiction, because there is no Art. III “case” or “controversy” for the court to decide. There is a similar argument to be made if standing is missing on the defendant side: no Art. III “case” or “controversy,” and hence no subject matter jurisdiction.

    On the other hand, I can see an argument that there is a case or controversy because the United States has been named and served; the problem is simply that no one will show up to defend. But this raises lots of potential problems, too. Suppose the plaintiff asks for $100 million in damages. Does the fact that no one shows up to defend mean the United States gets defaulted?

    If defendant standing is a problem of the same constitutional magnitude as plaintiff standing, then as I said before, I think the outcome is dismissal. I’m still not 100% sold on that, but I’m having a hard time talking myself out of it.

    Any other procedure would give the executive branch a sort of “hecklers veto”, enabling them to permit laws to stand without defending those same laws.

    I think the answer is that it leaves responsibility for dealing with the law with Congress, which can, given sufficient political will, repeal unpopular laws. In other words, the fact that you don’t have a legal remedy doesn’t mean you have no remedy. Your recourse is to the political system.

    jameshanley wrote:

    I’m not able to come up with a good argument for why BLAG doesn’t have standing.

    Well, the issues are a bit different than in the context of plaintiff standing, but the real question is: what interest does BLAG have, an interest that is somehow concrete and distinct, such that it’s different from the interest of any other concerned citizen, in defending DOMA? If you prefer to think of it in terms of injury, what injury does BLAG sustain (or, what injuries do BLAG’s members sustain) if the law is ruled unconstitutional? I get that they won’t like it. They’ll be offended by the thought of same-sex couples being able to marry and obtain the benefits of federal law. But how is that an unique injury or harm? And how is it sufficient to support standing to defend?

    I’m not suggesting that these arguments are winners. Frankly, I think the standards probably should be different for plaintiff versus defendant standing, especially in the somewhat unique circumstances we find ourselves in here. I can see the Court wanting to use these cases, at least in part, to clarify the rules of defendant standing, though I’m not convinced that the Court is leaning toward disposing of either or both appeals on standing grounds.

    noastronimer: BLAG stands for the Bipartisan Legal Advisory Group, a group of congresspeople who have formed this coalition specifically to litigate in cases like this one. The current members (I think) are Boehner, Cantor, one other Republican, Pelosi, and one other Democrat.

  12. 12
    abb3w

    Can’t the Legislative Branch pass laws granting standing? EG, the law requiring the president notify congress when he’s not going to defend a law, so that the Legislature can appoint someone?

    But yeah, this is looking like Justice Roberts is trying to keep his options open for avoiding a Dred Scott or Minersville v Gobitis verdict by any means he can lay his hands on. Long shot prediction: he may even resort to trying to postpone a verdict by ordering a second round of argument — purely to stall for time to allow building wider social consensus, rather than to build a stronger judicial consensus as was done in Roe v Wade.

    "Many things can happen in a year," the thief told them. "The King may die, the horse may die, I may even die. Or, ... maybe the horse will learn how to sing."

  13. 13
    Azkyroth Drinked the Grammar Too :)

    The Supreme Court on Tuesday chose a Harvard professor of constitutional law, Vicki C. Jackson, to argue that the Court does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act.

    *spittake* O.O

  14. 14
    Ichthyic

    . Suppose the plaintiff asks for $100 million in damages. Does the fact that no one shows up to defend mean the United States gets defaulted?

    how is that a problem?

    happens in small claims court ALL THE TIME.

    just because you lose a case by default, does not automatically award the DAMAGES the plaintiff claimed.

    again, small claims court judges rule on allowable damages all the time.

  15. 15
    abb3w

    @14, Ichthyic:

    happens in small claims court ALL THE TIME. just because you lose a case by default, does not automatically award the DAMAGES the plaintiff claimed.

    This, however, seems close to the stage just before. Just because the defense does not appear, doesn’t mean the plaintiff automatically wins. (Orly Taitz, anyone?) It just means they win if their argument has even the slightest iota of legal merit.

  16. 16
    abb3w

    (Off topic… Ed, you might let your web coder know that the preview part of the web page code mungs itself a bit when hyperlinks are included.)

  17. 17
    Argle Bargle

    Azkyroth #13

    The Supreme Court on Tuesday chose a Harvard professor of constitutional law, Vicki C. Jackson, to argue that the Court does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act.

    *spittake* O.O

    What’s so strange about a constitutional lawyer being named as an attorney to argue a constitutional point? Apparently I’m missing something that bemuses or confuses Azkyroth.

  18. 18
    jakc

    @Rodney Nelson

    From Victoria Jackson, the former SNL performer, now a wing nut commentator

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