Supreme Court appoints lawyer to argue that neither House Republicans nor the Justice Department have legal standing in DOMA case
December 11, 2012
By Scottie Thomaston
The Supreme Court has appointed a lawyer, Professor Vicki C. Jackson of Harvard Law, to argue in United States v. Windsor, challenging Section 3 of the Defense of Marriage Act, that neither the Bipartisan Legal Advisory Group (BLAG) (who is defending the law on behalf of House Republicans) nor the Justice Department (who stopped defending the law in February 2011) have legal standing to appear in court and so the Supreme Court has no authority to hear the case.
The Court added the jurisdictional question in its grant of review on Friday. Both parties have opposing views on their right to appear in court. SCOTUSBlog writes:
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.
They also note that this will likely extend the argument time beyond the usual one hour, something many had begun to speculate on already given the importance of the issues and national interest in these cases.
The Court had an opportunity to do the same in the Prop 8 case, since in Friday’s grant they added a jurisdictional question there as well, but they did not issue an order in that case.
The Supreme Court sometimes invites lawyers to argue certain legal issues as amicus when no party to the case wants to argue specific positions. This way the Court can hear all the different sides and decide which way it should decide the legal issues at stake. If the Court were to decide that neither BLAG nor the Justice Department have legal standing to be in court, the case would be dismissed.