LISTEN AND READ FOR YOURSELF: Audio and Transcript of Windsor Hearing
BY Michelle Garcia
March 27 2013 1:11 PM ET
As promised by the Supreme Court, the complete audio and transcript of today's one hour and 50-minute hearing was released ahead of the normal schedule. Usually the court waits until Fridays to do this sort of thing, but it made an exception.
With the justices still sticking with their rule against any outside cameras or recording equipment in the chamber, this is the best anyone will come to being there themselves.
Listen to the audio below and download the transcript here (PDF) or read it below the audio file.
Transcript text below
Washington, D.C. Wednesday, March 27, 2013
- VICKI C. JACKSON, ESQ., Cambridge, Massachusetts; for Court-appointed amicus curiae.
- SRI SRINIVASAN, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; for Petitioner, supporting affirmance.
- PAUL D. CLEMENT, ESQ., Washington, D.C.; for Respondent Bipartisan Legal Advisory Group of the United States House of Representatives.
- DONALD B. VERRILLI, JR., ESQ., Solicitor General,
- ROBERTA A. KAPLAN, ESQ., New York, New York; for Respondent Windsor.
CHIEF JUSTICE ROBERTS: We will hear argument this morning in Case 12-307, United States v. Windsor, and we will begin with the jurisdictional discussion. Ms. Jackson?
ORAL ARGUMENT OF VICKI C. JACKSON ON BEHALF OF THE COURT-APPOINTED AMICUS CURIAE
MS. JACKSON (pictured left): Mr. Chief Justice, and may it please the Court:
There is no justiciable case before this Court. Petitioner, the United States, does not ask this Court to redress the injuries it asserts. The House of Representatives' Bipartisan Legal Advisory Group, the BLAG, which does seek redress in the form of reversal, asserts no judicially cognizable injury.
While it is natural to want to reach the merits of such a significant issue, as in Raines v. Byrd, this natural urge must be put aside because, however important the constitutional question, Article III prevents its decision here and requires this Court to await another case, another day, to decide the question.
In the district court, Ms. Windsor alleged classical Article III injury for which she sought redress. Other persons injured by DOMA's operation could likewise sue in a first instance court and, if their challenge succeeds, obtain relief. But to exercise jurisdiction on this appeal when the United States asked for the judgment below, fully agrees with it, and --
JUSTICE SOTOMAYOR: Who else is going to be aggrieved if she is not? Meaning another person who is -- whose benefits are withheld, tax refund is withheld, is going to be in an identical situation to her? Who else could come in?
MS. JACKSON: Your Honor, it is possible that in district courts where other taxpayers sue the United States on similar relief, that the district courts will rule differently. At least one district court that I'm aware of, in a case called Louie v. Holder, ruled against -- upheld DOMA even though the Government had switched its position at that time.
In addition, the issue of DOMA --
JUSTICE SCALIA: Excuse me. If there is no jurisdiction here, why was there jurisdiction at the trial level?
MS. JACKSON: Your Honor
JUSTICE SCALIA (pictured left): I mean, the Government comes in and says "I agree" -- or if there was jurisdiction, why did the Court ever have to get to the merits? If you have a, let's say, a lawsuit on an -- on an indebtedness and the alleged debtor comes in and says, yeah, I owe them money, but I'm just not gonna pay it, which is the equivalent of the Government saying, yeah, it's unconstitutional but I'm going to enforce it anyway.
What would happen in that -- in that indebtedness suit is that the court would enter judgment and say, if you agree that you owe it, by God, you should pay it. And there would be a judgment right there without any consideration of the merits, right? Why didn't that happen here?
MS. JACKSON: Your Honor, the -- the two questions that you asked me, why did the district court have jurisdiction, the first answer is that the party invoking the district court's jurisdiction was Ms. Windsor, who did have an injury.
As to why the district court didn't enter judgment when the United States switched its position, I -- I imagine that the Court was -- would have wanted to have development of that issue, which was achieved through the intervention of the BLAG in the trial court, so that the judgment of unconstitutionality and of refund would have had a robust hearing --
JUSTICE SCALIA: Really, that's very peculiar. When -- when both parties to the case agree on what the law is? What, the -- just for fun, the district judge is -- is going to have a hearing?
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