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.