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

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





MR. SRINIVASAN (pictured left): Thank you, Mr. Chief Justice, and may it please the Court:
This Court has jurisdiction in this case based on the petition filed by the United States for the same reasons it had jurisdiction in parallel circumstances in Chadha and Lovett. There are two issues that have been -- that have been brought up this morning and I'd like to address each in turn.

One is whether there's a concrete case or controversy -- case or controversy in the sense of adversity in this Court; and the second is the question of whether there's Article III standing for the Government to bring this case before the Court.

CHIEF JUSTICE ROBERTS: On the first one, is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction? Any case?

MR. SRINIVASAN: Where the parties agreed -

CHIEF JUSTICE ROBERTS: All the parties agreed with the decision below and we nonetheless upheld appellate jurisdiction.

MR. SRINIVASAN: Well, you didn't speak to it in Lovett, Your Honor, but that was the circumstance in Lovett.

CHIEF JUSTICE ROBERTS: No, it wasn't raised -- it wasn't raised or addressed, and that had the distinct situation of an appeal, direct appeal from an Article I tribunal.

MR. SRINIVASAN: Well, I don't -- I don't know that that matters, because you had to satisfy Article III prerequisites to have the case in this Court. Now, Your Honor is, of course, correct that the -- the Court didn't affirmatively engage on the issue of jurisdiction, but that is a scenario --

CHIEF JUSTICE ROBERTS: Okay. So putting Lovett aside, since none of this was discussed, is there any, any case?

MR. SRINIVASAN: No, I don't know of one. But these -- but, Mr. Chief Justice, with all due respect -

CHIEF JUSTICE ROBERTS (pictured left): So this is totally unprecedented. You're asking us to do something we have never done before to reach the issue in this case.

MR. SRINIVASAN: Let me say two things about that if I might, Your Honor. First is that it's -- it's unusual, but that's not at all surprising, because the --

CHIEF JUSTICE ROBERTS: No, it's not just -it's not unusual. It's totally unprecedented.

MR. SRINIVASAN: Well, it's totally unprecedented in one respect, Your Honor. If you look at Chadha -- okay, the second point I'd make. Let me make one point at the outset, though, which is that whether it's totally unusual or largely unusual, I grant you that it doesn't happen. But the reason it doesn't happen is because -- I wouldn't confuse a numerator with a denominator. This set of circumstances just doesn't arise very often.

Now, it's true that when this set of circumstances

JUSTICE SCALIA: It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged unconstitutionality has to do with presidential powers. When the presidential powers are involved, he's the lawyer for the President. So he can say, we think the statute's unconstitutional, I won't defend it.

The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it, if we're in this new world, I -- I don't want these cases like this to come before this Court all the time.

And I think they will come all the time if that's -- if that's -- if that's the new regime in the Justice Department that we're dealing with.