FantasySCOTUS: Will SCOTUS decide that it doesn’t have jurisdiction over Windsor?

December 18, 2012

SCOTUS ClipboardIn granting certiorari to U.S. v. Windsor and Hollingsworth v. Perry, two of the more notable cases seeking review, the Supreme Court added questions relating to standing on each.

In Windsor, SCOTUS added additional questions over whether the Executive Branch’s agreement with the Second Circuit’s decision (that DOMA is unconstitutional) deprives the Supreme Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives has Article III standing in the case.

Supreme Court LGBT

In Perry (the Prop 8 case), the Court asked both sides to argue whether Prop 8’s supporters have standing under Article III, § 2 of the Constitution.

Both of Windsor’s jurisdictional questions arise from President Obama’s decision last year to stop defending the constitutionality of DOMA in court.I’m going to tackle these three questions in two separate posts; first up is Windsor’s two questions, which can be addressed jointly since they are so closely related to one another.

In response, the Republican-controlled House of Representatives directed BLAG to pick up DOMA’s legal defense where the Department of Justice left off.

The Article III standing problem surfaces here because the case started as “Windsor v. United States;” since the Constitution directs the Executive to “take care that the laws be faithfully executed,” and a part of that duty is one to defend duly enacted laws in court, the “United States” in the case title refers to the Executive Branch.

So, if both parties (Windsor and the Department of Justice) agree that DOMA is unconstitutional, is there really a “case or controversy” present, as would be required for the Supreme Court to have jurisdiction?

This question ties in directly with the question over BLAG’s standing – since, if the Court were to determine that BLAG has standing as an intervenor to defend the constitutionality of DOMA, there would again be a “case or controversy” for the Court to hear.

Now, I could go on for quite awhile discussing the legal background of Article III standing, but there isn’t much of a point; this whole issue is virtually unprecedented.

Never before has there been a case that has found the Executive Branch outright refusing to defend the constitutionality of a duly enacted law in court (INS v. Chadha is kind of, but not really, on point); as such, the Court is venturing into unexplored territory here.

So we really don’t have a lot of precedential guideposts on how SCOTUS will rule on these questions, but there are two major issues that will factor most strongly into the Court’s decision.

First, should SCOTUS decide that it lacks jurisdiction to hear Windsor, the merits of the case wouldn’t be touched; the Second Circuit’s ruling is left standing and DOMA’s Section 3 is (somewhat inconclusively) invalidated.

This is an undesirable outcome for the Supreme Court for several reasons:

  1. The Court wants to be the final arbiter on the validity of federal statutes;
  2. The Court wants to make a ruling on Windsor’s substantive questions (i.e. LGBT legal rights); and
  3. For reasons I’ll get into in a later post, this is going to be a landmark decision, and the Court’s Justices are not going to sidestep that legacy by punting the issue.

The second of these issues also weighs against SCOTUS’s determining Windsor on the standing questions alone: the legal implications of the Supreme Court’s decision on these jurisdictional questions extend far beyond the immediate impact of the fate of DOMA.

Think about it: if the Supreme Court were to decide that BLAG lacks standing, the Executive Branch would have broad new powers to simply decline to defend laws that it simply didn’t politically care for – and there would be nothing that either of the other two branches of government could do about it.

This is likely the reason why SCOTUS added these questions to Windsor: to curtail the impact of this and any future decisions by the Executive to refuse to defend U.S. laws in court, and we’re almost certainly going to see a discussion of this issue in the Supreme Court’s Windsor opinion, regardless of how it is decided.

Thus, SCOTUS will surely find that both BLAG has Article III standing and that the Executive’s agreement with the Second Circuit doesn’t deprive the Supreme Court of jurisdiction, will do so unanimously, and move on to the case’s merits.

United States v. Windsor

Question Presented (part 1)

Does the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprive this Court of jurisdiction to decide this case?

Lower Court’s Decision


My Prediction


Question Presented (part 2)

Does the Bipartisan Legal Advisory Group of the United States House of Representatives have Article III standing in this case?

Lower Court’s Decision


My Prediction


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