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Saturday, June 22, 2013

Dismissing the DOMA Case

Apparently "the rumor sweeping DC this past week" is that the Supreme Court will decide that it lacks jurisdiction in the DOMA case, and thus will dismiss the case without ruling on DOMA's constitutionality. Adam Winkler discusses the scenario in the New Republic (and seems to think that the consequences of doing so would be quite bad).  A friend asked me what I thought of the rumor.  Well: 

First, dismissing the case for lack of jurisdiction would be the right thing to do.  Invocations of the Supreme Court's jurisdiction, like any federal court's, require the invoking parties to have a real problem that they want the court to do something about.  But neither Windsor nor the United States has such a problem here.  Both of them got the result in the district court and in the Second Circuit that they wanted, and we can tell that because they're asking the Supreme Court to affirm.  An appeal where both parties want the Court to affirm is an appeal where there's no standing.  (Note for SCOTUS nerds-- this is different from the rare but consistent occasions where both parties want the Court to reverse and the Court appoints an amicus; those cases have prudential adverseness problems, but they don't have standing problems.) 

And as for BLAG's participation, 28 U.S.C. 516 limits the  "the conduct of litigation in which the United States" is a party to "officers of the Department of Justice," "except as otherwise authorized by law."  No law delegates that authority in this case to BLAG. 

In my view the only thing making this difficult is the Supreme Court's (apparent) earlier conclusion that it had jurisdiction in INS v. Chadha, but that case's reasoning isn't well explained and may not be correct or applicable.  (The always insightful Marty Lederman has responses to some of these concerns here, though he takes a much more doctrinal and less conceptual approach to the question; I don't actually mean for this post to substitute for the extensive briefing on the question.)

Second, with all that said, I still think it's highly unlikely that the Court will dismiss the case.  Of course oral arguments don't always predict case outcomes, but during the arguments over jurisdiction in the DOMA case the Court seemed very sympathetic to BLAG's position that there was standing.  (E.g., Paul Clement: "And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case. I mean, that's what you get under their view of the world, and that doesn't serve as separation of powers." Justice Kennedy: "That -- that would give you intellectual whiplash. I'm going to have to think about that.").  And it would be easy to write an opinion that finds jurisdiction with very little discussion, citing Chadha and moving on.  Dealing with the question without much explanation might irritate some professors of federal jurisdiction, but the Court doesn't always care what they think.

Third, if the Court does dismiss DOMA for lack of jurisdiction-- as it should-- the consequences would hardly be disastrous.  The result is simply that the parties can't appeal if neither of them wants the appellate court to do anything.  As soon as any court actually upholds DOMA, there will be appellate jurisdiction.  (One recent district court decision in the Ninth Circuit has arguably upheld DOMA.)

Winkler mentions this:

There is one possible route back to the Supreme Court. If someone challenges DOMA and loses, he or she would have the right to appeal. It’s hard to see that happening, however, given that the administration refuses to defend the law. Every challenger should win.

But it's worth emphasizing what this really means. If any court upholds DOMA, there will be jurisdiction in the Supreme Court. And if not-- if every single court to consider DOMA's constitutionality strikes it down-- the Supreme Court's intervention won't be needed, because DOMA will be invalid everywhere its constitutionality is raised. At that point, even the Obama administration would probably stop enforcing it.

Posted by Will Baude on June 22, 2013 at 11:32 AM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink


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Windsor is but one claim here. If the USSC decides as you prefer, what about all the other same sex couples with claims? Will they also get benefits, some benefits, benefits if they live in certain circuits ...

I'm left agreeing with Marty Lederman on the law and finding further victimizing same sex couples based on at best debatable self-abnegation grounds prudentially and otherwise a bad and unnecessary choice.

Posted by: Joe | Jun 25, 2013 1:39:41 PM

Another way of putting Kevin's--and, I think, Will's--point is that if wanting "the Supreme Court to resolve the constitutional question, because it has concluded that that is the appropriate manner of constitutional resolution" is enough to make out appellate standing, that's the standing ballgame. Indeed, I take it to be the basic thrust of thinking on the case-and-controversy requirement since the Legal Process tradition that this is precisely the interest that is NOT sufficient for justiciability.

Posted by: John Ohlendorf | Jun 24, 2013 9:53:28 AM

The US could have declined to seek cert and paid Windsor. They didn't. They brought a live dispute to the Supreme Court with hundreds of thousands of dollars turning on how the Court resolves the legal issues. That strikes me as more than enough to meet the case and controversy requirement.

The complicated thing is that the SG's office--acting in its complicated institutional role--also offered its assessment that, in its best legal opinion, the law in question is unconstitutional. Effectively, they said "we think the statute is unconstitutional, but, since we are not 100% sure the Court will agree and there is so much government $ at stake, we exercise our right to appeal." I suppose we could come up with a prudential rule saying that the US doesn't have the option of doing this, but I'm not sure why we would, particularly when there are so many institutional mechanisms for making sure that all sides of the issue will be presented.

Posted by: Andrew Siegel | Jun 24, 2013 9:36:22 AM

If the Supreme Court had denied cert (or if it were to dismiss/vacate for lack of jurisdiction), the executive branch would pay Ms. Windsor, pursuant to the unreversed judgment. And neither Ms. Windsor nor the United States want anything to be changed about that judgment.

(I think that Ms. Windsor's standing is technically not the point, since her petition has not been granted, but it's worth analyzing because the Court could always grant it if that were a way to cure the jurisdiction problem.)

Posted by: William Baude | Jun 24, 2013 1:11:03 AM

Since the appeal is alive, it is a waste of time to drag things out, including denying loads of people benefits for a longer period of time. I understand "disastrous" is being used in a limited way, but there are real world effects here. It is not like the circuits haven't already dealt with the issue. In fact, they dealt with it somewhat differently. Why delay some clarity?

Or, is this a "force POTUS to non-enforce" mechanism? That is what it realistically will be -- the USSC will turn down POTUS' effort to get them to decide, even when POTUS finds the policy unconstitutional. This seems a generous bit of self-abnegation for USSC to do on dubious grounds. No wonder you think it is unlikely to happen.

Posted by: Joe | Jun 23, 2013 11:14:25 PM

Ms. Windsor at this moment is not getting the tax benefit. Breyer noted this in effect -- the Administration supported the lower court but did not wish to concede yet. In practice, realistically, this means the government is accepting the appeal. It doesn't seem that complicated really. There is a 'case or controversy.' Windsor has yet to WIN.

With respect, that's a lot of verbiage, but bottom line, no sale.

Posted by: Joe | Jun 23, 2013 11:08:42 PM

Hi Marty,

I'm not positive I have all of the terminology in your post down, but I believe my argument is a variant of either your c or your e, I'm not sure. I don't particularly think it's relevant that the parties agree on the question presented in itself, it's that the parties all want the Supreme Court's judgment to leave the proceedings below untouched -- i.e., they do not want a legal change to the status quo. (That relies on a premise that the part of the Court's decision that works a legal change is the judgment, not the opinion, which I suspect you might disagree with.) The agreement between the parties is a consequence of the fact that they both want an affirmance, but it's not the point.

Similarly, it's not quite that the parties have received all that they sought *below.* It's that the parties have *already* received all that they seek *on appeal.*

Now as for the question of what values this serves: the value is the idea of the reactive federal court, whose power is a consequence of the need to resolve a legal dispute rather than the other way round. One important way that idea is instantiated is in the rule that federal courts don't decide cases where nobody actually wants the court to provide relief. There would be no jurisdiction in a case where the plaintiff requested no relief from any injuries she had sustained. For the same reason, there's no jurisdiction in an appeal where the appellant requests no relief from the judgment below.

Posted by: William Baude | Jun 23, 2013 1:09:31 AM

Good post, Will. I'm glad you agree. Chadha is actually quite easy to distinguish given Congress' concrete interest there.

Posted by: Yaakov | Jun 22, 2013 10:11:23 PM

I hesitate to disagree with Marty Lederman, whose jurisdictional analyses in the SSM cases have been a gold standard for learned and accessible Supreme Court commentary, but here's a fuddy duddy (but legally correct, I think) answer to his "what reading of Article III/constitutional values" questions re: Windsor:

A "no appellate jurisdiction" ruling would vindicate the constitutional principle that the judiciary's law declaration/ascertainment of governing law function is incidental to its case resolution function. This principle can be seen in the text of Article III and in the whole Marbury "province and duty" paragraph: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." Yes, there is some obvious tension between this "incidentality" principle and discretionary cert jurisdiction, among other features of current statutory and doctrinal rules of federal jurisdiction. But there is no "case" when there are no adverse claims of legal right, and there remain no adverse claims of legal right when the party invoking federal judicial power has already received all that it sought, all the parties agree on the judgment, and there has been no precedential ruling of legal significance beyond the case itself (as there was in Camreta). (I'm setting aside BLAG for purposes of this discussion.)

One of the broadest understandings of "arising under" jurisdiction in the US Reports is Osborn, in which the Court still carefully noted that the judicial power "is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law." The Administration here is following the forms, but not asserting its rights.

If statutory rules of jurisdiction were different, there would probably be a way consistent with Article III for the Supreme Court to resolve DOMA's constitutionality for the whole federal judiciary while honoring the incidentality principle. Perhaps, for example, there could be a provision allowing certification of a question from a district court to the Supreme Court while there still remains a "case." But given the current jurisdictional rules, there seems to be nothing from which Supreme Court "judicial review" can emerge as an incident of the exercise of judicial power.

There may seem something anomalous about concluding that there is no appellate jurisdiction even though Windsor presents "the sort of dispute, and question, that the Supreme Court itself could adjudicate if only the case had taken a different course in the courts below." But we (or our ancestors) have lived with a similar anomaly before. Under Section 25 of the Judiciary Act of 1789, statutory jurisdiction turned on the course in the court below.

I haven't fully thought through the practical and normative implications of a holding dismissing on jurisdictional grounds. I'm inclined at this point, though, to just wait and see what the opinions say. Regardless of how a majority of the Justices vote, I expect that at least one or more of them will argue for no jurisdiction, in which case we will have a set of arguments to react to and, hopefully, to learn from.

Posted by: Kevin C. Walsh | Jun 22, 2013 6:34:00 PM

Thanks very much for the generous shout-out, Will. I want to press you a bit, however, on your unequivocal assertion that "dismissing the case for lack of jurisdiction would be the right thing to do" because "an appeal where both parties want the Court to affirm is an appeal where there's no standing."

That's the "section heading" version of the argument, I suppose -- but doesn't it require some analytical and/or normative support, especially seeing as how, as you concede, it's in tension with the governing doctrine?

As I understand it, you're advocating the final of the arguments that I describe in the post to which you link -- i.e., that there is no Article III case or controversy where both of two conditions are present:

i. The party invoking the court’s jurisdiction has “received all that it has sought in the lower court” (or in the administrative proceeding from which the appeal is taken);


ii. All parties (not amici) present before the Court are seeking “precisely the same result” in the case — not merely the same answer to the question presented, but the same judgment.

Under governing doctrine neither of these two conditions, standing alone, would be sufficient to foreclose a case or controversy; but perhaps both together would be. Or so the argument would go. As I explain, such a holding might not be foreclosed by Chadha. Even so, it would mean that the Court lacked Article III jurisdiction in Lovett, a result that none of the parties or the Justices in that case even contemplated.

More importantly: Why? What is the persuasive reading of Article III in support of the argument? What constitutional values would it serve? As I wrote in that post: There is no obvious normative or practical reason why the Court should hold that there is Article III jurisdiction when only one of the two conditions is present, but not when both are. None of the usual rationales for finding a lack of Article III jurisdiction would appear to be implicated: The Court’s decision will resolve a concrete controversy and determine the legal relations between the parties (namely, whether the U.S. cuts Windsor a tax refund check) — there is nothing abstract, hypothetical or abstract about the issue or the dispute. There will be adequate, zealous advocacy on all aspects and sides of the question presented. It is the sort of question — the constitutionality of a federal statute — that falls within the wheelhouse of the “province and duty of the judicial department to say what the law is” (Marbury v. Madison). And it is not the sort of question, or a case, that falls outside the jurisdiction of the federal courts altogether or that the federal judiciary should stay out of categorically in order to allow the political branches to resolve: No one could contend, for example, that the district court lacked jurisdiction to enter the judgment in Windsor. Indeed, all would agree it is the sort of dispute, and question, that the Supreme Court itself could adjudicate if only the case had taken a different course in the courts below.

You concede that were this a case in which district court and the court of appeals had ruled *against* Windsor, she'd unquestionably have standing to petition the Court, even though the U.S. and Windsor would take precisely the same views in the Court in such a case as they are taking here, and be seeking “precisely the same result.” OK, well in that case, what constitutional value would be served to require the Court to await such a case before it can consider the question of DOMA’s constitutionality — in effect to require spouses in same-sex marriages to repeatedly sue the U.S., and repeatedly prevail, and yet to preclude the Supreme Court from adjudicating the question until there is a case where the plaintiff loses — that is, until such time as there is a circuit split? If there would be Article III jurisdiction in that case, why not in this one?

P.S. It's not the case that the United States does not "want[] the appellate court to do anything." It wants the Supreme Court to resolve the constitutional question, because it has concluded that that is the appropriate manner of constitutional resolution in some cases, such as this one, where the political branches disagree. Thus, a merits decision by the Supreme Court will have a practical impact, whichever way it comes out: If the Court affirms, the Executive will cease enforcing DOMA, in this and all other cases; but if it reverses, the Executive will enforce DOMA, in this and other cases. That's a fairly momentous difference in kind -- a practical impact of no small moment.

Posted by: Marty Lederman | Jun 22, 2013 12:49:01 PM

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