[Posted June 26, 2013] Back in March, when the Supreme Court of the United States entertained argument in United States v. Windsor, the challenge to the Defense of Marriage Act, I mused about the possibility that the Court might not find a justiciable controversy, because it didn’t have a true appellant. As the Chief Justice pointed out in colloquy with a Deputy Solicitor General, the Supreme Court had never before entertained an appeal in which both the nominal appellant and the appellee asked it to affirm the lower court’s ruling. Here’s how I put the issue back then: “I have learned this about appellate practice over my career: It’s theoretically possible to have an appeal without an appellee, but if you don’t have an appellant, then you don’t have an appeal.”

Today, a bare majority of the Court votes to affirm anyway. A slightly larger majority (6-3) brushes aside the adverseness requirement, finding that the Court had the ability to reach the merits of the issue.

I will leave to others a discussion of the merits, beyond this observation: This was a case about money. Mrs. Windsor’s spouse died in 2009. Mrs. Windsor had to pay an inheritance tax of $363,000, because her spouse was female. If that spouse had been male, the tax bill would have been zero. If that isn’t a denial of equal protection of the laws, I don’t know what is. (Technically, the Equal Protection Clause applies only to states, through the Fourteenth Amendment. But caselaw establishes that there is an equal-protection component to the Due Process Clause, and that applies to the feds, too.) I happen to think that the Court got that part right on the law.

Instead of discussing the merits, politically charged as they are, in detail, I want to revisit the procedural subject I mentioned in March, to see how the Court addressed it, and how the majority finessed a massive problem.

Predictably, the majority cites INS v. Chadha (1983) for the premise that “[t]he necessity of a ‘case or controversy’ to satisfy Article III was defined as a requirement that the Court’s ‘“decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold [the statute], the INS will execute its order and deport him.”’” That would have been fine for the adverseness requirement of Ms. Windsor’s claim in the US District Court. But not on appeal. By then, both parties agreed that Mrs. Windsor should get a refund. The only thing required at that point was for the ruling in Mrs. Windsor’s favor to be enforced.

In truth, there was one, and only one, reason why the two litigants wanted to get this case decided by the highest court in the land. They both wanted a ruling that would be binding across the nation, instead of just in the jurisdiction where the suit was filed. (For a companion to this premise, consider today’s other same-sex-marriage decision, in Hollingsworth v. Perry, which now only applies in California.) Today’s majority concedes as much, when Justice Kennedy, writing for the Court, notes on page 11 of the slip opinion that if the Supreme Court were to decline to decide this case, “extensive litigation would ensue.” The majority finds it “prudential” to take up the issue rather than leave the question unanswered in the other 94 districts in the nation. It’s just more efficient this way, the Court seems to be saying.

Bull. This is a matter of jurisdiction, of the power of a court to entertain a suit (or, in this instance, an appeal). You can’t soft-pedal the extent of a court’s powers; those are constrained by the Constitution. And American courts don’t issue advisory opinions, even on matters as important as the constitutionality of a federal statute.

There are three dissenting opinions today – one each by the Chief Justice, Justice Scalia, and Justice Alito. There’s a degree of cross-pollenization between them, but in the end, the Chief and Justice Thomas join Justice Scalia’s scathing denunciation of the majority’s finesse of the standing problem. If you go to the Court’s website to read the opinions, you’ll note that Part II of Justice Scalia’s dissent deals with the merits, even after he notes that the Court doesn’t have jurisdiction. I find this portion of the dissent to be strident and over the top; I don’t think tha his honor’s acid pen needed to go there. But Part I, dealing with the jurisdictional issue, justifiably calls the majority on the carpet and lays bare the shallowness of Justice Kennedy’s reasoning on justiciability.

Since it’s Scalia, you know there are going to be zingers. There are plenty today. We’ll start with the second paragraph, which is worth quoting in its entirety:

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

Both sides turn to Chief Justice Marshall’s famous statement in Marbury v. Madison that “It is emphatically the province and duty of the judicial department to say what the law is.” Justice Kennedy cites this as support for the premise that where (as here) the Executive declines to enforce a law, the courts have to decide its constitutionality, lest they cede to the Executive the power to do what courts are supposed to do. Justice Scalia exposes the weakness of this citation:

But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a “primary” one. The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”

In Justice Scalia’s view, courts can’t pass on even profound constitutional questions in the abstract; they can only do so in the context of a case or controversy, with real, live, adverse litigants.

You want more Scalia bon mots? Here’s a particularly good one:

Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons, the judgment of the court of appeals should be affirmed.” . . . That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it.

I’m not always in Justice Scalia’s camp. On a great many matters, I’m not within telescope range of his views. But he’s right about this. The majority has decided this case because it wanted to; not because it had the power to do so under the Constitution. It did so for reasons of expediency, without according the proper deference to the principles that enable it to act and that constrain its rulings.

So is this a bad thing? For someone who agrees with the way the merits came down, what’s the harm in backhanding a little matter of procedure? After all, a win is a win, no matter how you get there. Isn’t it?

Not for me, it isn’t. I am an appellate lawyer. My craft requires that I adhere to certain rules, that I master certain techniques, that I follow certain principles. The predictability of our judicial decisions is one of the foundations of the premise that our governmental institutions will follow the rules laid down for them; not cast them aside when they prove inconvenient, or when it is “prudent” to do so. I don’t do that in my practice, and I have a right to expect that courts won’t do so, either.

If our courts do abandon these precepts in order to reach a particular result, then we have ceased to be a nation of laws, not men. Those courts will have cast off one of the important restraints on judicial power: their inability to act in the absence of a dispute. The requirement of adverseness is as fundamental to jurisdiction as is standing. The six justices who swept it under the rug today knew that, but apparently didn’t care.