Bench Memos

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Today’s Oral Argument in DOMA Case


The Supreme Court has scheduled one hour and fifty minutes of argument in U.S. v. Windsor in its session beginning at 10 a.m.

The first fifty minutes is dedicated to two questions of jurisdiction and standing: specifically, whether the Obama administration’s abandonment of its duty to defend DOMA deprives the Court of jurisdiction, and whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives has standing to defend DOMA. The Court-appointed amica, Harvard law professor Vicki Jackson, has twenty minutes to explain her position against jurisdiction/standing. Deputy Solicitor General Sri Srinivasan has fifteen minutes to express the government’s position that the Court has jurisdiction but that the House doesn’t have standing. And the House’s lawyer, Paul Clement, has fifteen minutes to argue that the Court doesn’t have jurisdiction over the actual petition that it has granted (the government’s), but that the House has standing and the Court may grant and rule on the House’s petition.

The next sixty minutes will be devoted to the merits of DOMA. Paul Clement has thirty minutes (divided between his opening and rebuttal) to defend DOMA. Solicitor General Don Verrilli and plaintiff’s lawyer Roberta Kaplan each have fifteen minutes.

What to look for:

1. What commonality will the justices see between the jurisdiction and standing issues in this case and the standing issue in the Prop 8 case? Will they seem to be looking for a way to avoid ruling on DOMA?

My own take, for what it’s worth, is that there are two cross-cutting differences between the jurisdiction/standing issues in the two cases: (a) Because the federal Constitution generally doesn’t limit the ability of a state to decide who will represent its interest, it ought to be clear (for the reasons I spell out much more fully here) that Prop 8 proponents have standing. The federal constitutional limits are more directly implicated in the DOMA case. (b) On the other hand, there is much clearer established precedent for jurisdiction/standing in the DOMA case (at least for the House), whereas the Court hasn’t previously addressed the particular issue in the Prop 8 case. In sum, I think that the Court ought to find jurisdiction/standing in both cases. But I expect that the oral argument will involve a searching inquiry that, as with yesterday, won’t clearly reveal where the justices are.

2. If yesterday’s argument in the Prop 8 case is a reliable indicator, there ought to be at least five justices who are very skeptical of the attack on DOMA. If, however, any of those five justices seems receptive to the badly confused federalism argument against DOMA, the state of play might be very different.


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