SCOTUS appoints unrelated attorney to argue against jurisdiction in DOMA

Timothy Kincaid

December 11th, 2012

Today is full of marvels and wonders. And while this could be a common thing to those who follow the Supreme Court, I’ve not heard of it before: (Scotusblog)

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.

It seems that none of the parties are holding that position, and they want to consider the best argument.


December 11th, 2012

It appears she’s just an attorney, not a judge.

Timothy Kincaid

December 11th, 2012

Thanks Rob, stupid typo

Ben In Oakland

December 11th, 2012

Is this just a nice way to say that the judges really don’t want to rule on any of it? Are they really that chickenshit?

Amd if so, then just when i think they can’t go any lower, someone hands them a shovel.

Timothy Kincaid

December 11th, 2012

Ben, I’m not convinced that the question of standing is merely evasive. It was a pretty big deal in the Arizonans for Official English case. They may be seeing increased proposition action and want to clear up the issue.

Ben in Oakland

December 11th, 2012

Timothy, I sincerely hope you’re right. It just doesn’t feel that way, but ever since bowers v. Hardwicke, my faith in the perspicacity andhe integrity of the SCOTUS has been less than unwavering.


December 12th, 2012

If SCOTUS won’t take DOMA because the government says it’s unconstitutional, how do you ever know what is or is not constitutional? Without a final arbiter, you end up with laws that are enforced or not depending on who is in office.

Example: Democrat Obama says DOMA unconstitutional, four years later, TeaParty President Santorum says constitutional and retroactively takes away all the benefits. (!)


December 12th, 2012

Hue-Man, it isn’t just the Government that says it is unconstitutional, it was the governmnet RELYING ON FEDERAL COURT RULINGS that said it is unconstitutional. Big difference. In your example, there would need to be many cases for a supposed TeaParty Santorum presidency to rely on. But yes, it does indeed need to be settled.


December 12th, 2012

Ben said it succinctly. And, to Hue-Man’s posting, if SCOTUS quashes cert. for lack of jurisdiction, then the Second Circuit’s decision in Windsor v. U.S. is the law and given the respect for the Second Circuit, the other Circuits are likely to follow it except maybe for the Fifth and Eleventh Circuits.


December 13th, 2012

For SCOTUS to not hear Windsor, that leaves Prop 8 for the court to determine if Banning SS Marrige is Constitutional or not. Even if only applied to Cali, the clear implication would be that no state could do the same.

Should any other State attempt to oppose this, then only one more case would do the deed, and likely end up with SCOUTS much more quickly.


December 13th, 2012


The California issue isn’t about banning same sex marriages. It is about taking away the marriage rights after they had been found to be a Constitutional Right by the State Supreme COurt. THe issue is the taking away an existing right. It could not be used to send any message to any other state, as only California has granted then taken away those rights.


December 19th, 2012

Congress has standing to defend its legislation. Imagine if they did not. All that would be needed is to find one corrupt judge to overturn legislation and then the president would hold all power over whether to defend the legislation or “veto” it by choosing not to defend it in court. I hope the current Supreme Court has enough sense to find standing. We are not a banana republic just yet.


January 28th, 2013

It’s not common, but it happens from time to time. Bill Coleman was appointed to argue in favor of the IRS authority to withdraw a university’s tax exempt status because of racial discrimination in the Bob Jones University case in the early 1980s, when the Administration declined to defend the IRS authority. As I recall, the court appointed a local practitioner to argue that the court did not have jurisdiction to hear the Affordable Care Act cases this past term under the anti-tax injunction act.

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