LISTEN AND READ FOR YOURSELF: Audio and Transcript of Windsor Hearing

The complete audio and transcript of today's hearing has been released.

BY Michelle Garcia

March 27 2013 2:11 PM ET


MS. JACKSON: Well, Your Honor, the jurisdiction of the Court, it seems to me, is not affected by the length of the proceedings it undertook. In Kentucky --

JUSTICE SCALIA: I'm not talking about jurisdiction now. I'm talking about why the district court, without getting to the merits, should not have entered judgment against the Government.

MS. JACKSON: I am not sure I have a wonderful answer to that question, Justice Scalia, but I do think the case bears some similarities to Kentucky against Indiana, which was discussed by the parties, where Kentucky sued Indiana in this Court's original jurisdiction on a contract. The two States had a contract. Indiana agreed it was obligated to perform, but it wasn't performing. There -- it was worried about a State court lawsuit. This Court exercised original jurisdiction to give Kentucky relief. And I think that's analogous to what the district court did there.

The issue before us today, I think, is an issue of appellate jurisdiction. And the U.S. is seeking to invoke the appellate jurisdiction of Article III courts, notwithstanding that it doesn't seek relief; it seeks affirmance.

JUSTICE ALITO: Well, the Solicitor General's standing argument is very abstract. But here is one possible way of understanding it, perhaps the Solicitor General will disavow it, but it would go like this: The President's position in this case is that he is going to continue to enforce DOMA, engage in conduct that he believes is unconstitutional, until this Court tells him to stop.

The judgment of the Second Circuit told the Executive Branch to comply with the Equal Protection Clause immediately. The President disagrees with the temporal aspect of that, so the Executive is aggrieved in the sense that the Executive is ordered to do something prior to the point when the Executive believes it should do that thing.

Now, wouldn't that be sufficient to make -- to create injury in the Executive and render the Executive an aggrieved party?

MS. JACKSON: I think not, Your Honor. I think not, because I don't see how that would be any different from any party saying, well, we really don't want to pay this judgment until we're sure all of the courts agree. And I think this Court's -- this Court doesn't have a lot of case law where a party seeks review to get affirmance.

But in the Princeton University against Schmidt case, there was a State court conviction, Ohio State Court overturns it, Princeton University seeks review, because its regulations were at issue. New Jersey joins in seeking review, but does not ask for relief; does not take a position on what relief would be appropriate.

JUSTICE BREYER: Why -- why wouldn't -imagine -- there in Article II, it says that the President shall take care that the laws be faithfully executed. So the President has worked out -- I, personally, and for reasons in -- in my department, others think that this law is unconstitutional, but I have this obligation. And because I have this obligation, I will not, I will continue to execute this law. I will continue to execute it though I disagree with it. And I execute it until I have an authoritative determination not to.

Now, how is that different from a trustee who believes that he has an obligation to a trust to do something under a certain provision that he thinks doesn't require that, but, you know, there's a debate about it, but he says, I have the obligation here. I'm going to follow this through.

There'd be standing in the second case for any fiduciary, despite his personal beliefs, to continue. We'd understand that and say there was standing. Why don't we here?

MS. JACKSON: Well, the trustee I think, would be able to go to a court of first instance to get an adjudication of the claim. What I'm submitting to you that the trustee could not do, after getting the first -- the judgment in the court of first instance stating what the remedy -- what the liability is, then seek review of that judgment, but ask only for it to be affirmed.

JUSTICE BREYER: And that's the part I don't understand. For -- if, in fact, as you agree, the trustee or other fiduciary in my example would indeed have standing to act according to the law, even though he thinks that that law is unconstitutional because of his obligation such as under Section 2. You agree he has the -- he has -- there is standing when he goes into court in the first place, which surely he could interpret Article II as saying and you follow it through as long as you can do it, which includes appeals, until the matter is determined finally and authoritatively by a court. If you could do the first, what suddenly stops you from doing the second?

MS. JACKSON: In the first instance, the obligations are uncertain the trustee is presumably subject to potentially adverse competing claims on his or her action.

CHIEF JUSTICE ROBERTS: Well, I would have thought -

MS. JACKSON: Those are -

CHIEF JUSTICE ROBERTS: I would have thought your answer would be that the Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice.

MS. JACKSON: Mr. Chief Justice, I think that's a hard question under Article II. But I think the Article III questions that this Court is facing turn on what the parties in the case have alleged, what relief they're seeking, and what the posture is.

JUSTICE KENNEDY: In Federal court's jurisprudence, are you saying there's a lack of adversity here?

MS. JACKSON: I am saying primarily -

JUSTICE KENNEDY: Can you give us a pigeonhole?

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