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

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

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: United States v. Windsor


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.

10:18 a.m.

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?


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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

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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?

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.

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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.

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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?

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.

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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.

Elena Kagan PhotoX400 2
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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