LISTEN AND READ FOR YOURSELF: Audio and Transcript of Windsor Hearing
BY Michelle Garcia
March 27 2013 2:11 PM ET
JUSTICE GINSBURG: Mr. Srinivasan -
JUSTICE SCALIA: It's not what the OLC opinion said, by the way.
MR. SRINIVASAN: It can be that the President decides to enforce it. That's what happened in Lovett and that's the course of events that was sought -- that happened in Chadha. And there's -
JUSTICE GINSBURG (pictured left): But when the Government -- when the -- when the case is adjudicated in the first instance -- we're talking here about appellate authority.
MR. SRINIVASAN: Correct.
JUSTICE GINSBURG: The Government sometimes loses cases in the first instance and then it doesn't appeal. If it agrees with the result that the court reached, it doesn't appeal and then the judgment in the first instance where there was adversity is -- is the last word. So, when does the Government decide, yes, we agree with the -- the adjudication in the court of first instance and so we'll leave it there, and when does it say, yeah, we agree, but we want higher authority to participate?
MR. SRINIVASAN: Well, there are -- there are a number of considerations that could factor into it, Justice Ginsburg. You're right that either of those scenarios is possible. The reason that the Government appealed in this case is because the President made the determination that this statute would continue to be enforced, and that was out of respect for the Congress that enacted the law and the President who signed it, and out of respect for the role of the judiciary in saying what the law is.
The point of taking an appeal here is that the Government suffered an injury because a judgment was entered against the Government in the court of appeals. That's a classic case for injury.
JUSTICE SOTOMAYOR (pictured left): Counsel, could you not run out of time on the BLAG standing? I know we -- we didn't permit Ms. Jackson to -- to address it. So don't run out of time on that.
MR. SRINIVASAN: I -- I won't, Your Honor. I'll be happy to turn -- turn to BLAG standing. I would like to make a couple of points on the question of our own standing to bring the petition before the Court.
And I think Justice Breyer was right. The key precedent here is Chadha. Chadha establishes a couple of things. First, Chadha establishes that there is aggrievement in the circumstances of this case. And I don't see what the difference is between aggrievement for purposes of statutory -- the statutory analysis at issue in Chadha, and injury for purposes of Article III.
JUSTICE ALITO: Well, how are you aggrieved? "Aggrieved" means that you are deprived of your legal rights. And you don't think that you've been deprived of your legal rights because your rights -- your obligations under the Constitution supercede DOMA, and you haven't been deprived of anything that you're entitled to under the Constitution. So how are you aggrieved?
MR. SRINIVASAN: I guess we'd -- I'd subscribe to the aggrievement analysis that the Court made in Chadha at pages 929 to 931 of its opinion. And what the Court said is this: "When an agency of the United States is a party to a case in which an act of Congress that it administers is held unconstitutional, it is an aggrieved party. The agency's status as an aggrieved party is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional." That description is on all fours with the circumstances of this case.
JUSTICE ALITO: Could I just -- before you go on to the House group, could I just clear up something? In your brief, you argue that you are representing all three branches of the Government, is that right?
MR. SRINIVASAN: Correct.
JUSTICE ALITO: You're -- you're representing the Judiciary as you stand before us here today -
MR. SRINIVASAN: Well -
JUSTICE ALITO: -- trying to persuade the Court, you're representing the Court?
MR. SRINIVASAN: We represent the sovereign interests of the United States. Of course, in a case like this, the -- the -- we're submitting the dispute to the Judiciary for resolution, so in that sense, we -I'm not going to stand here and tell you that I can dictate the -- that the Judiciary comes out in one direction or the other. I certainly would like to be able to do that, but I don't think I can, in all fairness, do that. But I -
JUSTICE ALITO: It seems very strange. So in -- in a criminal case where it's the United States v. Smith, appearing before an Article III judge, the United States, the prosecutor is representing the court as well?
MR. SRINIVASAN: Well, I think -- I guess what I would say is this: The United -- the United States -- the Executive Branch represents the sovereign interests of the United States before the Court. It's not -- I think the point of this is that it's not that the Executive Branch is representing the Executive Branch alone.
The Executive Branch is representing the sovereign interests of the United States, and those interests would include the interests of the Congress that enacted the law, the interests of the President that signed it, and the interests of the Judiciary in pronouncing on what the law is. And the course of action that the President chose to undertake here is in keeping with all of those considerations.
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