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Is the Justice Department’s Supreme Court petition in Golinski a message for Justice Kagan?
July 9, 2012
By Jacob Combs
H/t to Kathleen for posting this in Quick Hits
Over on her blog Hunter of Justice, Georgetown law professor Nan Hunter has an analysis of the Department of Justice’s unexpected move last week asking the Supreme Court to take up the California DOMA case Golinski v. OPM before any decision is made at the appellate court level. The administration also recently filed for Supreme Court review of the consolidated Massachusetts DOMA case, in which the First Circuit unanimously declared the law unconstitutional.
In the briefing requesting certiorari in Golinski, the Justice Department wrote that the case addresses matters ”of exceptional public importance and call for definitive and timely resolution.” But Hunter, reading between the lines, thinks there is another reason the Justice Department would like to see Golinski taken up by the Supreme Court either concurrently or in a consolidated case with the Massachusetts proceeding: the possibility that Justice Kagan would recuse herself from any DOMA decision in the Massachusetts case.
Once again, this is an exercise in Supreme Court prophesizing, but as Hunter wrote in an earlier post regarding the First Circuit’s decision in Gill v. OPM, “When Justice Kagan was Solicitor General, she was almost certainly involved in Justice Department decision-making about whether and how it should defend DoMA, a federal law. Assuming that she was, she will have to recuse herself from any participation in Massachusetts v. HHS when it reaches the Supreme Court.” Since recusals only pertain to the specific case at hand and not the wider legal issue, Kagan would be under no obligation to recuse herself from Golinski, which was argued after her nomination to the high court and which she therefore likely had no involvement in.
One important caveat to all this, of course, is the fact that Supreme Court recusal policy is relatively murky. It is up to the individual justices themselves to decide whether or not a recusal is appropriate, and of course there is no higher court to appeal to for a recusal. Therefore, if Justice Kagan decides that her work in the Solicitor General’s office on DOMA does not merit recusing herself from the case (as she did in the health care proceedings), she won’t do so.
For the sake of argument, if Justice Kagan were to step down from the Gill case, the most likely outcome would be a 4-4 split decision with Justice Kennedy joining the three remaining liberal justices to strike DOMA down and the four conservatives voting to uphold it. Most court watchers believe that Justice Kennedy is likely to vote to strike DOMA down, considering the fact that his libertarian leanings make such a law impinging personal liberties particularly odious to him (indeed, his vote to strike down the Affordable Care Act shows just how strong his feelings towards individual liberties are). Because of his vote to uphold the ACA, there has been some speculation that Chief Justice John Roberts will join the liberals in striking DOMA down, but given his past voting record, there is no clear evidence that he would do so.
A 4-4 tie would be good news, but not great news. On the positive side, the split would uphold the First Circuit opinion, meaning that DOMA would be effectively struck down in the First Circuit (that is, Puerto Rico and most of New England). Unfortunately, such a decision would not be binding upon the rest of the United States. Of course, any future DOMA case that came to the Supreme Court would likely be heard by Justice Kagan, who would probably then vote with the Kennedy/liberal alliance that might strike DOMA down in the Massachusetts case. At that point, DOMA would finally be history across the country.
Golinski, of course, is the DOMA case that is furthest along in the court system behind Massachusetts, which has already been presented to the Supreme Court for review. Golinski makes the obvious choice for a second case to clarify a 4-4 split in Massachusetts, so Hunter’s argument that the Justice Department’s request to expedite Golinski is an attempt to head off the uncertainty of a 4-4 tie is based on sound logic.
To do some further tea leaf reading, the request to move Golinski straight to the Supreme Court most likely reflects the view of the Justice Department that the likelihood of success for the administration on a DOMA case at the Supreme Court is high, a view which I believe is correct. DOMA is standing on its last legs, and it is time for the high court to declare once and for all that the law is discriminatory. If an expedited Golinski means that Justice Kagan can help make that a reality in a way that she cannot in Massachusetts, the Justice Department is pursuing a long-sighted and clever strategy indeed.
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20 Comments Leave a Comment
1.
devon | July 9, 2012 at 9:50 am
Assuming a Romney victory and the House remaining in republican control, I'm concerned that DOMA litigation could be thrown into judicial chaos. Romney has signed pledges defend DOMA and would surely order DOJ to pivot positions once again to defend the law. BLAG would still have its paid counsel in court.
Much would depend on the timing of arguments. Nothing that I've read suggested that arguments could be heard prior to Jan. 20.
I
2.
jpmassar | July 9, 2012 at 10:07 am
Is there any obvious reason why DoJ has not asked that the Windsor case go directly to the Supreme Court as well?
3.
_BK_ | July 9, 2012 at 10:25 am
Which means that this round of elections is exceedingly critical.
4.
Sagesse | July 9, 2012 at 10:25 am
@
5.
Larry | July 9, 2012 at 11:08 am
Also, aren't all the DOMA cases slightly different? IANAL, but I think it's the differences between an applied lawsuit and a facial lawsuit. Windsor involved estate taxes, Golinski involves health insurance, etc. So even if the Supreme Court strikes down DOMA in the Massachusetts cases, would that be DOMA across the board? I could see some people trying to argue that immigration law, for instance, would be unaffected by the decision.
6.
arjay1951@mac.com | July 9, 2012 at 11:21 am
The answer, as usual, is maybe. Nothing can prevent folks from making arguments, of course, but if the estate tax (which is federal, although some states have some) cannot be applied in a DOMA case, or if the federal court's insurance system cannot apply DOMA, the immigration law probably cannot either. plaintiffs in all the cases undoubtedly sought both facial and "as applied" rulings, and an injunction against DOMA, if upheld (or, more narrowly, not overriden) by the Supremes would have little legal vitality.
7.
Scott Wooledge | July 9, 2012 at 1:07 pm
Maybe it has something to do with the fact that Golinski and Gill both relate to gov't providing benefits to employees.
Windsor is strictly about tax code.
Maybe DOJ just feels introducing a third case (Windsor) is superfluous and Gill and Golinski have more expansive implications and more imperative arguments than, "I'd like to pay less taxes, please."
8.
Jamie | July 9, 2012 at 4:54 pm
Yeah, it will go something like this:
Supreme Court: The DOJ's brief contends that DOMA is discriminatory, gays and lesbians are a suspect class, and that we should assume that all laws affecting them are suspect, that's no longer the case?
Romney DOJ: No, your Honor, we believe that gays and lesbians are not a suspect class, that DOMA wasn't passed with discriminatory intent despite the record clearly showing otherwise, and that gays and lesbians should be investigated and eliminated from the Federal Constitution.
Supreme Court: REALLY?
9.
Jamie | July 9, 2012 at 4:58 pm
For clarity, Kagan said she would recuse herself in the Smelt case, not in Gill. It's still unclear whether she was even involved in the Gill/MA case at all.
Further, given that the DOJ has completely reversed their position regarding the defense of DOMA, I honestly don't know that she really should recuse herself.
10.
Scott Wooledge | July 9, 2012 at 5:00 pm
Romney can't unring the bells that have been rung already. What would be interesting is all the briefs the DOJ have filed in support of us remain a part of the case record, in Gill, in Golinski…
So Justices will be reading the Obama DOJ's take on DOMA, and then in their court, the hostile Romney DOJ will be arguing the opposite.
11.
erasure25 | July 9, 2012 at 5:46 pm
Sorry, but if Thomas can be on the take from anti-health care groups but still rule on the health care law, I see no reason for Kagan to recuse herself.
12.
Mike in Baltimore | July 9, 2012 at 6:14 pm
A question:
The Massachusetts cases are an example of cases being combined into one for purposes of 'judicial efficiency'/similarity of issues, etc. Has there ever been any cases that have been UNcombined at the appellate or SCOTUS level (aside from the law being revoked/Constitutional Amendment/War, etc.) for any reason?
13.
Scott Wooledge | July 9, 2012 at 6:57 pm
Un-combined? Well, the reason to combine cases, is because they share some fundamental underlying question of law. (As in Gill & Golinski, is DOMA defensible, constitutionally?)
I'm sure that may have happened, if say an appellate court combined two cases, and on review, the SCOTUS decided it was inappropriate for them to have been combined. Or, they might hear both case A, and case B and decide in favor of case A and against case B (because there was some difference that judge found to be legally significant that affected the outcome).
14.
Mike in Baltimore | July 9, 2012 at 7:32 pm
Thank you Scott Wooledge for taking almost 100 words to say what could be said in as few as 3. In other words, your response is "I don't know" and could have been stated in that manner.
Which brings up the question of why you responded in the first place, if you don't know.
The question is "Has there ever been an instance of a lower court combining two cases into one, and a higher court UNcombining those cases?"
Please, no "Well it could happen because . . ., but I don't know" responses, like Scott Wooledge's response.
15.
John | July 9, 2012 at 8:16 pm
Let's all chill, now.
16.
arjay1951@mac.com | July 9, 2012 at 8:37 pm
It hashappened a number of times, particularly in the school desegregation cases, like Brown v. Board. The specific mechanism is often a remand of the second case "to be considered [by the Court of Appeals] under the terms of the opinion" in the companion case. For instance, if the findings of fact in the two cases is widely disparate, the Supremes will remand for further consideration. The new legal standard must then be applied. See also the many Capttal Punishment cases decided in June, 1976. The lead case was Furman v. Georgia, but since the Court ruled capttal punishment "as then applied in the United States" was cruel and unusual and various jurisdictions had been stayed pending Furman, they were individually remanded to thevaious courts for further proceedings.
If you don't want to wade through Furman, check out
Taylor v. Louisiana, 419 U.S. 522 (1975), the case where the Supremes ruled women could not be excluded from jruies. It was argued at the same time as
EDWARDS v. HEALY, 421 U.S. 772 (1975), a facial challenge to the stattue filed by the Louisiana chapter of the ACLU (Ruth Bader Ginsburg was lead counsel). The cases were combined for argument by the Supremes, and both arose from Louisiana. Although Ginsburg didn't brief the criminal case, she was aware of it and The Taylor opinion adopts Ginsberg's brief in Healy almost word for word, them remanded the Healy case. Taylor was an appeal from the LA Supreme Court; Healy was from the federal courts.
More than 100 words, but nothing about constitutional litigation is easy or anyone could do it.
17.
Mike in Baltimore | July 9, 2012 at 11:01 pm
arjay,
Thank you. Specifics were given, not generalities leading to a "I don't know" response.
I notice the examples you give are all from SCOTUS. Are you aware of any cases UNcombined at the Appeals level, or (to your knowledge) does it only happen at the SCOTUS level?
18.
arjay1951@mac.com | July 9, 2012 at 11:48 pm
Yes. I know specficly of at least one set of cases. The federal courts put a restriction on the population of the state prison, which resulted directly in the overcrowding of local parish (county) prisons. Individual lawsuits were gradually filed against a number of those parish prisons, beginning in late 1976. The state fought them all, along with indivdual parish sheriffs. Each fact situation was different, but the cases were almost identical. I know because i was co-counsel on almost all of them, and frankly, engineered their coordination.
A number of different federal courts (there are three districts of federal court in Louisiana, and at one point twenty-five or more district judges handling separate cases.
In Hamilton v. Morial, As state prisoner numbers increased in local jails, federal actions were filed, complaining of overcrowding. To avoid the spectre of inconsistent decrees, in Hamilton v. Morial, 644 F.2d 351 (CA-5, Div. A, 1981) ordered that all federal litigation then pending or subsequently filed against state, parish or local prison facilities, relating directly or indirectly to inmate population issues, be consolidated in the Middle District of LA. The specifc appeal was about three cases on appeal.
The trial court there treated them as a combined case, entered consent decrees in most, and the Fifth Circuit finally returned them to the separate cases for trials on those that did not settle.In your term, they were "UNcombined" at the appeals level.
Again, more than 100 words, but i think it addresses your question. I am sure there areother examples, but we are pretty far afield from the subject of this blog.
19.
Mike in Baltimore | July 10, 2012 at 1:18 am
arjay,
Too far afield? Actually, no, at least not to this specific thread, which is discussing the request for cert AND the possible addition of another case to the request.
In Massachusetts, two cases were combined at the District Court level, left together at the Appeals Court level, and now DoJ is advocating that the Golinski case be concurrent, or maybe preferably as a consolidated case, with the Massachusetts cases, being appealed to SCOTUS.
So no, we are definitely not, IMO, 'pretty far afield', especially for this particular thread, which involves an appeal of a consolidated case, and the possible request to add another case to those cases.
As to why I stated "UNcombined", I've stated before, but I'll state again, I am not an attorney. As such, I do not, and do not try, to make sure everything I post is in 'attorney-speak', but in common-speak language.
20. Prop 8 Trial Tracker &raq&hellip | November 2, 2012 at 3:48 pm
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