Additional Lawyer Selected to Argue in Supreme Court DOMA Case

In a somewhat unusual move, the United States Supreme Court has selected an additional attorney to argue two procedural issues raised in the Edie Windsor DOMA case, namely that (1) that the Supreme Court does not have standing to review the U. S. Court Appeals for the Second Circuit ruling because Executive Branch has already conceded that DOMA is unconstitutional, and (2) the House of Representatives’ Republican leaders do not have a right to appear in the case under Article III of the Constitution which states the jurisdiction of the federal courts, including the Supreme Court, and the types of cases these courts can consider.  SCOTUS Blog looks at this development which suggest that in both the Prop 8 appeal and the DOMA appeal, the Supreme Court could using a decision of lack of standing to avoid rendering a substantive ruling.  The result would be that (a) the ruling striking down DOMA would stand and (b) the ruling striking down Prop 8 would stand and the impacts would be limited to the Second and arguably the First Circuits and, in the case of Prop 8, California, respectively.  Here are some article highlights:

The Supreme Court on Tuesday chose a Harvard professor of constitutional law, Vicki C. Jackson, to argue that the Court does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act. She will file a brief and appear to argue the two procedural issues that the Court itself had raised in agreeing last Friday to consider DOMA’s validity.

Jackson, who joined the Harvard faculty last year after several years at the Georgetown University Law Center, will contend that the executive branch’s agreement with a lower court that DOMA is invalid takes away the Justices’ authority to rule on DOMA, and that the House of Representatives’ Republican leaders do not have a right to appear in the case under Article III of the Constitution. The professor will appear in the case as an amicus to make only those points, not to join in the debate over the constitutionality of DOMA, which the Court also will be considering.

When the Court accepted for review two cases on the same-sex marriage issue, it added questions to each on issues about its authority to rule. The second granted case involves the constitutionality of California’s “Proposition 8,” withdrawing the right of gays and lesbians to marry in that state. In that case, the Court also will be considering whether the proponents of “Proposition 8″ as a ballot measure have a right under Article III to appeal a lower court decision striking down that measure.

With the addition of Professor Jackson to the DOMA case, it appears likely that the Court will expand the argument time for that case beyond the usual one hour. It is unclear when the Court will announce an argument schedule for the new marriage cases.

The Court presumably reached beyond the two parties in the DOMA case for a lawyer to argue the procedural points, since the parties themselves disagree. The federal government has been willing to allow the House GOP leaders to be in court to defend DOMA’s constitutionality, since the government is no longer doing so, but has raised questions about whether the Republican leaders’ petition is the one the Court should consider on DOMA. In turn, the Republican leaders have contended that, since the government got its way in the Second Circuit Court, it is not a proper party to be appealing this case on DOMA. Professor Jackson, a neutral, will argue against both as the proper parties.