[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 Potomac. But the events of the past two days at #1 First Street in the District have captivated mainstream-media attention, given the enormous political import of the questions debated there, involving the legal state of same-sex marriage. Most of the media coverage focuses on the merits of the issues in Hollingsworth v. Perry (constitutionality of California’s ban on same-sex marriage) and US v. Windsor (same for the federal Defense of Marriage Act).

Of the two cases, I’ve always felt that the issues in Windsor were more compelling in a non-political way (I’ve always maintained that we don’t do politics here at VANA, and that isn’t going to change today). Windsor isn’t about sexuality; it’s about money. If Ms. Windsor’s late spouse had been male, she would have paid zero dollars in inheritance taxes; since that spouse was female, she had to pay $365,000. That raises obvious (and complicated) equal-protection questions.

But the point of this essay is to outline how the merits of those important questions might not be decided in this appeal. That’s 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 yesterday’s oral argument in Windsor are available on the Supreme Court’s website; you can find them here. I’ve read the first half of the transcript, since that’s where the procedural issues were discussed. Here are some thoughts about that part of the argument.

First, the dramatis personae: Three lawyers argued the procedural issues, starting with Harvard Law School professor Vicki C. Jackson, who acted at the Court’s request as amicus curiae. Next came Deputy Solicitor General Sri Srinavasan, representing the federal government; and then former Solicitor General Paul D. Clement, who argued on behalf of the House of Representatives’ Bipartisan Legal Advisory Group.

The reason why three lawyers were involved was because the two parties to the case – the United States and Ms. Windsor – agreed that DOMA was unconstitutional. Every appellate court prefers to have actual adversaries at the lectern (not both at the same time, of course), so it can consider competing arguments before making a reasoned decision. In order to have both sides of the procedural question addressed, the justices asked Ms. Jackson to appear as amicus and address the question of the court’s power to adjudicate the case.

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 United States, since the judgment of the Court of Appeals was in favor of Ms. Windsor; that judgment ordered the government to repay the taxes that she had paid under protest. But the United States had joined her in asking the Court of Appeals to rule the way it did – the Obama Administration had concluded that the Act was unconstitutional – so the government can hardly be considered to be aggrieved, at least in the traditional sense of appeals. You can’t complain when a court does what you asked it to do.

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 I’ll 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.

This issue is subtler than it seems. You might think, at first glance, that legislators would have the right to come to court to defend their duly passed legislation; but generally they don’t. The litigants in a case are generally given complete control over the course of the litigation, and legislators aren’t. Otherwise, a group of legislators (or even a single one with a strong motive) could enter private litigation to insist that a certain statute has a certain meaning.

Of course, there’s a real problem at the other end of this issue. Where Congress has duly passed legislation, and it’s been signed into law by the President, the President has a duty to defend it. When the President later decides not to defend the law against a challenge in court, as happened here, doesn’t that effectively give the President unilateral power to invalidate a statute, despite Congress’s wishes? You won’t find that among the enumerated powers in Article II.

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 United States, does not ask this Court to redress the injuries it asserts. The House of Representatives’ Bipartisan Legal Advisory Group, the BLAG, which does seek redress in the form of reversal, asserts no judicially cognizable injury.

In other words, the US isn’t really complaining about what happened below, and BLAG has no right to be here in the first place because it isn’t directly harmed by the ruling below; so there’s no real appellant. 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.

During Prof. Jackson’s 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 I’ll 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 there’s 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.

There’s an easy answer to his Honor’s point: Courts aren’t bound by the parties’ concessions of law. We see that all the time in judicial opinions here in Virginia; for a recent example, see Murphy v. DSS, 57 Va.App. 784, 790 (2011). If such concessions were binding, private parties could effectively change the law, simply by telling the appellate court that the law was such-and-such. Since in our republic we leave formulation of law to legislatures and interpretation of law to judges, litigants can’t do that.

On the separate issue of the right of BLAG to appear, Clement relied on the 1983 decision in INS v. Chadha (462 US 919), in which a group of congressmen had been allowed to appear in a case in which a deported foreign national and the INS agreed that a given statute was unconstitutional. But as the chief justice noted in colloquy yesterday, the posture of Chadha was different in a key way: The challenged statute was one of Congressional procedure, something that the legislature obviously has an interest in protecting. This is just plain-old legislation, in which normally Congress would have no right to act as a party.

Next, the deputy solicitor addressed the situation where the parties on appeal agreed upon the result that the court should reach. In this context, there’s a big difference between an agreement that the court should reverse, and an agreement upon affirmance. In the former case, there’s no logical problem, because there’s emphatically an aggrieved party. But when the parties both want affirmance, why on earth is anyone appealing? Couldn’t 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: Well, I don’t — I don’t know that that matters, because you had to satisfy Article III prerequisites to have the case in this Court. Now, Your Honor is, of course, correct that the — the Court didn’t affirmatively engage on the issue of jurisdiction, but that is a scenario –
CHIEF JUSTICE ROBERTS: Okay. So putting Lovett aside, since none of this was discussed, is there any, any case?
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 that’s the primary reason why I suspect that the Court might not reach the merits. Every court knows that you can’t fudge jurisdiction; it can’t be conveyed by consent of the parties, and it’s the first question that must be answered in every case in which appellate jurisdiction isn’t obvious.

There are subjective reasons why various folks – litigants and observers alike – badly want the justices to rule on the merits. But it’s entirely foreseeable to me that a majority of the Court may rule that the case isn’t judicable. That’s because the parties in the case are the United States and Ms. Windsor, and neither of those parties is complaining about what happened in the Court of Appeals. If the justices conclude that BLAG doesn’t have standing in this case – and on the law, I tend to doubt that it does – we’ll get an unsatisfying result that will please Ms. Windsor but almost no one else.

I’ll 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 I’ve ever received. In essence, the Robes in Washington were asking this professor, “Please help us. We value your opinion and would welcome your guidance.” There are few professional compliments that can compare with that.