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 1:11 PM ET


MS. JACKSON: I -- it's a little difficult, because the circumstance is unusual, Justice Kennedy, but I think the most apt of the doctrines, although they are overlapping and reinforce each other, the most apt is standing.

This Court has made clear that a party on appeal has to meet the same Article III standing requirements of injury caused by the action complained of and redressable by the relief requested by the parties.

JUSTICE KENNEDY (pictured left): But it seems to me there -- there's injury here.

MS. JACKSON: Well, Your Honor, I do not agree that the injuries alleged by the United States should be cognizable by the Article III courts, because those injuries are exactly what it asked the courts below to -- to produce. But even if we treat the injuries as sufficiently alleged, Article III requires that the party complaining of injury ask the court to remedy that injury. And that's a very important requirement, I think, under Article III for several reasons.

The idea of the case or controversy limitation, as I understand it, is part of a broader separation of powers picture, to make sure the Federal courts perform their proper role. Their proper role is the redress of injury, and it is the need to redress injury in ordinary litigation that justifies judicial review of constitutional issues. But --

JUSTICE KAGAN: But, Ms. Jackson, I mean, to go back to Justice Kennedy's point, we have injury here in the most classic, most concrete sense. There's $300,000 that's going to come out of the Government's treasury if this decision is upheld, and it won't if it isn't.

Now, the Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury.

Why isn't it here?

MS. JACKSON: Justice Kagan, there is a three-prong test. Even if you treat that as injury, it does not meet the requirements for standing on appeal, because the Government has not asked this Court to remedy that injury. The Government has not asked this Court to overturn the rulings below so it doesn't have to pay the $365,000. It has asked this Court to affirm. And the case or controversy requirement that we're talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief.

If the Government or any party is not bound with respect to standing by its articulated request for a remedy, what that does is it enables the Court to fill in, to reshape. And for a doctrine that is supposed to be limiting the occasions for judicial review of constitutionality, that is troubling.

JUSTICE KAGAN (pictured left): But don't we often separate those two things, ask whether there's injury for Article III purposes and causation and redressability, as you say, but then say, well, sometimes when all of those are met, there's not going to be adequate presentation of the arguments, and so we will appoint an amicus or we'll restructure things? And we do that when the Government confesses error, often. I mean, we do that several times a year in this courtroom.

MS. JACKSON: Yes, Your Honor. But concession of error cases, with respect, are quite different, because in concession of error cases typically both parties at the appellate level end up being adverse to the judgment below and they are asking relief from this Court from the judgment below.

But here we have a situation where, putting BLAG to one side for the moment, between the United States and Ms. Windsor there is no adversity, they're in agreement, and neither of them is asking this Court to reverse or modify the judgment below. And so I think the confession of error cases are quite different from the perspective of Article III.

JUSTICE BREYER: No, they're -- they're not in agreement about whether to pay the money or not. They are in agreement about what arguments are correct legal arguments, and I can't think of a case other than the sham cases which -- which this isn't, where -- where you would find no standing or other obstacle. And I can think of one case, which you haven't mentioned, namely, Chadha, which seems about identical.

MS. JACKSON: Your Honor, I don't think that Chadha is identical, with respect. In -- for two main reasons. In Chadha, the Court was I think quite careful to avoid deciding whether the United States had Article III standing. It intensively analyzed a statute, since repealed, 1252, which gave this Court mandatory jurisdiction in cases in which a Federal statute was held unconstitutional and the U.S. was a party. And it framed its analysis of whether the statute permitted the appeal. What I think was -- oh, may I reserve my time for rebuttal?

CHIEF JUSTICE ROBERTS: You can finish your sentence.

MS. JACKSON: Thank you.

What was -- what was going on there was the Court said: Well, the statute wanted to reach very broadly, perhaps implicit, not stated, perhaps more broadly than Article III.

Congress said whenever you have this configuration, you go up to the Supreme Court. Then the Supreme Court in Chadha says, of course, in addition to the statute, there must be Article III case or controversy, the presence of the congressional intervenors here provides it. And that -

CHIEF JUSTICE ROBERTS: Thank you, counsel. That was more than a sentence.

MS. JACKSON: Oh, I'm sorry. I'm sorry, Your Honor. Thank you.

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