THE PROCEDURE GEEKS GUIDE TO US V.
[Posted March 28, 2013] As my long-time readers know, I seldom delve into the affairs of That Other Supreme Court, the one on the wrong side of the
Of the two cases, Ive always felt that the issues in
But the point of this essay is to outline how the merits of those important questions might not be decided in this appeal. Thats because there are some substantial procedural problems that the Supreme Court must overcome before it can consider the merits. This may be a situation that only an appellate-procedure geek can love; but being one of those, I find the issues fascinating.
The transcript and audio of yesterdays oral argument in
First, the dramatis personae: Three lawyers argued the procedural issues, starting with
The reason why three lawyers were involved was because the two parties to the case the
There are two primary procedural issues here, and the first of those could scuttle any decision on the merits: Who is the aggrieved appellant? Technically, that would be the
It would, of course, be nice to have the Supreme Court decide the issue once and for all, for the entire nation, so the parties might understandably agree to what Ill call a friendly appeal. But in that sense, there would be no actual case or controversy; the justices would be asked to issue an advisory ruling on the constitutionality of the Act. We all know that courts don’t do that.
Enter the House Republicans, under the banner of the Bipartisan Legal Advisory Group (referred to in this case by the unflattering-sounding acronym BLAG). That group of legislators hired Clement, a very capable Supreme Court lawyer, to argue in favor of the constitutionality of the Act. But first he had to justify his spot at the lectern. The justices grilled him yesterday on the second main procedural issue: what right a group of legislators had to appear in court in support of legislation, when the litigation was between the government and a private citizen.
Even so, Clement had a tough row to hoe, since Prof. Jackson went first and made a fairly compelling case for the proposition that there was no actual controversy here. She began:
There is no justiciable case before this Court. Petitioner, the
In other words, the US isnt really complaining about what happened below, and BLAG has no right to be here in the first place because it isnt directly harmed by the ruling below; so theres no real appellant. I have learned this about appellate practice over my career: Its theoretically possible to have an appeal without an appellee, but if you don’t have an appellant, then you don’t have an appeal.
During Prof. Jacksons argument, Justice Scalia asked about the absence of a meaningfully adverse relationship in the lower court:
JUSTICE SCALIA: I mean, the Government comes in and says “I agree” — or if there was jurisdiction, why did the Court ever have to get to the merits?
If you have a, let’s say, a lawsuit on an -on an indebtedness and the alleged debtor comes in and says, yeah, I owe them money, but I’m just not gonna pay it, which is the equivalent of the Government saying, yeah, it’s unconstitutional but I’m going to enforce it anyway. . . .
Really, that’s very peculiar. When — when both parties to the case agree on what the law is? What, the — just for fun, the district judge is — is going to have a hearing?
The first thing Ill mention comes from the word-nerd inside me: the use of gonna as a verb (or at least an auxiliary verb) has hit the mainstream. But for our purposes, the real issue is whether theres a justiciable case or controversy where the parties to litigation agree from the beginning on what the law is and what the remedy should be.
Theres an easy answer to his Honors point: Courts arent bound by the parties concessions of law. We see that all the time in judicial opinions here in
On the separate issue of the right of BLAG to appear, Clement relied on the 1983 decision in INS v. Chadha (462
Next, the deputy solicitor addressed the situation where the parties on appeal agreed upon the result that the court should reach. In this context, theres a big difference between an agreement that the court should reverse, and an agreement upon affirmance. In the former case, theres no logical problem, because theres emphatically an aggrieved party. But when the parties both want affirmance, why on earth is anyone appealing? Couldnt you just do nothing and get the same outcome? (The reason someone’s appealing, of course, is that the parties want a ruling from the Supreme Court, which ruling would have nationwide application. But that desire doesn’t address the standing problem.)
That led to the following colloquy between the chief justice and the deputy solicitor:
CHIEF JUSTICE ROBERTS: On the first one, is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction? Any case?
MR. SRINIVASAN: Where the parties agreed
CHIEF JUSTICE ROBERTS: All the parties agreed with the decision below and we nonetheless upheld appellate jurisdiction.
. . .
MR. SRINIVASAN: No, I don’t know of one. But these — but, Mr. Chief Justice, with all due respect
CHIEF JUSTICE ROBERTS: So this is totally unprecedented. You’re asking us to do something we have never done before to reach the issue in this case.
MR. SRINIVASAN: Let me say two things about that if I might, Your Honor. First is that it’s — it’s unusual, but that’s not at all surprising, because the
CHIEF JUSTICE ROBERTS: No, it’s not just -it’s not unusual. It’s totally unprecedented.
Any appellate lawyer who reads the last two comments from the chief is bound to swallow hard, and thats the primary reason why I suspect that the Court might not reach the merits. Every court knows that you cant fudge jurisdiction; it cant be conveyed by consent of the parties, and its the first question that must be answered in every case in which appellate jurisdiction isnt obvious.
There are subjective reasons why various folks litigants and observers alike badly want the justices to rule on the merits. But its entirely foreseeable to me that a majority of the Court may rule that the case isnt judicable. Thats because the parties in the case are the
Ill append one last quotation from the transcript here. After Prof. Jackson finished her brief rebuttal argument and answered a couple of questions, the chief had these final remarks before the Court turned to the merit issues:
CHIEF JUSTICE ROBERTS: Ms. Jackson, before you sit down, I would like to note that you briefed and argued this case as amicus curiae at the invitation of the Court, and you have ably discharged the responsibility, for which you have the gratitude of the Court.
Praise like this is a rare and precious thing. I have acted as amicus curiae in similar circumstances once, at the request of the Supreme Court of Virginia in a case pending before that court a few years ago. I have long regarded that request from the SCV to be one of the most cherished honors Ive ever received. In essence, the Robes in