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Tue Dec 11, 2012, 06:05 PM

Supreme Court Asks Lawyer To Argue Special DOMA Question

Source: AP via HuffPo

The Supreme Court on Tuesday invited a Massachusetts lawyer to come argue that the justices cannot rule on one of the gay marriage questions it had planned to decide next year.

The court asked lawyer Vicki C. Jackson of Cambridge to join the gay marriage arguments this spring, but she won't be arguing whether it's legal for governments to treat gay Americans differently in issues of marriage. Instead, at the court's invitation, Jackson will be arguing that it's improper for the Supreme Court to even consider making a ruling on a federal law that treats gay married couples differently from heterosexual married couples.

...

Jackson was asked by the court to argue "that the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this court of jurisdiction to decide this case." She will also argue that House Republicans cannot substitute themselves for the Justice Department and therefore they lack "standing in this case."

Read more: http://www.huffingtonpost.com/2012/12/11/supreme-court-asks-lawyer_n_2279393.html?ir=Gay+Voices



As best I understand it, to avoid standing on top of their own heads, the court has asked another lawyer to join the arguments by saying the court has no jurisdiction and that Republicans cannot stand in for the Justice Department if the Justice department has lost interest in the case.

As some commenters have pointed out, this would be the easy way out of DOMA.

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Response to TrogL (Original post)

Tue Dec 11, 2012, 06:13 PM

1. "that the Executive Branch's agreement with the court below that DOMA is unconstitutional" is part

 

of the arguments by Jefferson and Madison in their KY and VA Resolutions leading to the following conjecture.

If a law, e.g. DOMA, is unconstitutional, then SCOTUS does not have jurisdiction and it's up to each state to decide the matter.

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Response to TrogL (Original post)

Tue Dec 11, 2012, 06:18 PM

2. The Supreme Court did the same thing in the Affordable Care Act case.

The Supreme Court appointed a lawyer, Robert Long, to argue for the application of the Anti-Injuction Act to prevent hearing of the constitutionality of the individual mandate and Medicaid expansions when neither the respondents nor the petitioners were willing to do so.

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Response to blueclown (Reply #2)

Tue Dec 11, 2012, 06:21 PM

3. Thanks from a non lawyer. nt

 

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Response to blueclown (Reply #2)

Tue Dec 11, 2012, 07:18 PM

5. um...ok, now pretend you are explaining it to a 3rd grader please. I can't tell if this is good or

bad?

I sure don't want the states deciding it. I want my domestic partnership to give me full rights of a married couple.

i.e., my partner visiting me in the hospital if I had to be hospitalized in florida.

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Response to DonRedwood (Reply #5)

Tue Dec 11, 2012, 10:19 PM

8. It's neither.

At times, the Supreme Court will appoint a separate lawyer to answer a constitutional question that neither party wishes to defend. It is important that the Supreme Court answers every constitutional question here, and one of the major questions is whether the Supreme Court has the jurisdiction to decide this case given that the executive branch will not defend DOMA.

The fact that the Supreme Court appointed a separate lawyer to defend whether the Supreme Court has jurisdiction to rule in the DOMA challenge tells us NOTHING about how they will ultimately rule on the constitutionality of the DOMA. In fact, if Mrs. Jackson is successful, the court will not decide whether DOMA is unconstitutional. However, it is likely that they do decide.

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Response to blueclown (Reply #8)

Tue Dec 11, 2012, 11:00 PM

9. Thanks for your explanations, but I still don't understand what happens if the

Supreme Court decides that they do not have jurisdiction. Does that mean the lower court ruling (in our favor) stands and DOMA is unconstitutional? If not, who does have jurisdiction?

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Response to karynnj (Reply #9)

Wed Dec 12, 2012, 09:03 AM

11. Unless the court explicitly states so, then no.

Also, it's highly unlikely that the court doesn't decide on the constitutionality of DOMA. Their appointing of a lawyer to defend this issue is just a procedural issue for other courts to follow as case precedent. I.e. if another case comes along with almost exactly situation, then it will answer the question that the Supreme Court has the jurisdiction to hear the case.

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Response to blueclown (Reply #11)

Wed Dec 12, 2012, 09:43 AM

12. Thanks!

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Response to TrogL (Original post)

Tue Dec 11, 2012, 07:17 PM

4. It makes sense

Because there is no provision in the Constitution for Congress to represent the Executive or Judicial branch in court cases, Congress obviously lacks standing in bringing or continuing a lawsuit.

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Response to TrogL (Original post)

Tue Dec 11, 2012, 07:45 PM

7. That is bad practice by the court, aiming towards perfidious law. The traditional notion has been

that the Court addresses such arguments and issues as may come before it, not that it reaches into the wider world to choose its own arguments and issues -- as it did so wrongfully in Citizens United

It has moreover been a traditional past view that, whereas Congress and the Executive both have a role in the passing of laws, the men and women of Congress may therefore have some standing to see the laws enforced

The issues in DOMA ought to be such straightforward matters as, Whether DOMA offends against the full faith and credit clause? and Whether DOMA offends the equal protection clause? -- questions to which the Court should answer firstly Yes and again secondly Yes

No good will come of the Court's continual topsy-turvying of long-held procedural views, such as the attack on stare decesis in Bush v Gore, or the sudden unwarranted expansive increase of case scope in Citizens United, or the sudden notion that the Congress may have no standing to argue before the bar for the enforcement of laws it passed

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Response to struggle4progress (Reply #7)

Wed Dec 12, 2012, 01:04 AM

10. In a way, Congress has no de-facto standing to bring any case

In other words, since the Supreme Court has no enforcement powers against congress, congress has no obligation to submit to any supreme court order. So the supreme court is understandably loath to consider such a matter. Congress can freely thumb its nose at the supreme court and they can't do anything about it.

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