Wednesday, April 10, 2013

Reargue or Plow Ahead?

By Mike Dorf

In the excellent back-and-forth among commenters on my posts on the federalism argument in the DOMA case (here and here), the following question was raised:  If the Court is inclined to resolve the case by holding that Congress lacked the affirmative power to adopt DOMA's federal definition of marriage, should it set the case for reargument and give the parties the opportunity to brief and argue the merits of that question?  I wrote in response that in principle the answer is yes, but that the Court's practice has been inconsistent. Here I want to connect that response to some recent developments.

Let's begin with the Supreme Court Rules.  Rule 14.1 states, in relevant part:
The statement of any question presented is deemed to comprise every subsidiary question fairly included therein. Only the questions set out in the petition, or fairly included therein, will be considered by the Court.
As a preliminary matter, one could read these statements as warnings to the parties but not binding on the Court itself.  In fact, however, the Justices consider themselves bound too, or at least they typically say they do.  And for good reason.  The Rule serves both an interest in fairness to the parties--if the Court is going to rule against a party, at least give the party an opportunity to present an argument for a different outcome--and an interest of the public: In an adversary system, we rely on the parties to develop the best arguments for and against any particular ruling, including the rules of law announced by court decisions; if the Court does not have full briefing and argument on some proposition, it is more likely to err with respect to that proposition than if it does.

Thus, so far it looks like the argument for reargument--or at least for supplemental briefing--in Windsor is pretty strong, if the Court plans to rely on the federalism ground for invalidating DOMA. But in fact, as I noted in the comments, recent practice suggests that the Court won't take that route.

Consider Comcast v. Behrend, which was handed down the very day that Windsor was argued, literally minutes before the Windsor argument began.  The original cert petition in Comcast presented the following question, as drafted by Comcast's lawyers:
whether a district court may certify a class action without resolving “merits arguments” that bear on Rule 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).
The Supreme Court granted the cert petition, but in an order that stated that the grant was limited only to the consideration of the following, different question:
Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.
But then when it came time to decide the case, the Court discovered that its reformulated question would not resolve it because the petitioner had failed to preserve the necessary objection to the admissibility of the evidence that seemed to be assumed by the Court's reformulated cert question.  Four Justices therefore wanted to DIG, that is, dismiss the writ as improvidently granted.  But it takes six votes to DIG.  (Since it takes only four votes to grant cert--the so-called "rule of four"--permitting even five votes to accomplish a DIG would undermine the rule of four.)  So the four DIGgers ended up dissenting on the merits.

Meanwhile, the majority decided the case by ruling on the basis of its resolution of the original cert question as posed by the petitioner Comcast.  Justice Scalia (author of the majority opinion) argued (in his footnote 4) that doing so was somehow encompassed by the cert question, but I think his claim is largely unpersuasive.  Certainly the respondent--whom the majority ruled against--didn't have fair notice that the original cert petition question was still in play.

Thus, as far as the parties are concerned, the majority in Comcast played fast and loose with Rule 14.1.  But curiously, so far as the public is concerned, it didn't.  Why not?  Because the Court had full briefing and oral argument on the relation between merits arguments and the question of predominance under Rule 23(b)(3) in another case on the docket: Amgen Inc. v. Connecticut Retirement Plans & Trust Funds.

As I discuss in my latest Verdict column, it is passing strange that the Court addressed the same core issue in Comcast as it had before it in Amgen, yet despite the fact that it decided the two cases within a month of each other, the Court in Comcast appeared unaware of its own decision in Amgen.  In the column I consider the reasons for this schizoid pattern.

But let's return to the issue of the Court deciding issues outside the scope of the cert question.  Although I started out by saying that Supreme Court Rule 14.1 protects parties and the public, I now think that its chief function is to protect the public.  After all, the SCOTUS has repeatedly stated that it doesn't take cases to engage in error correction.  So a party in a case before the SCOTUS has no greater entitlement to make his, her or its arguments than does a non-party who will be subsequently bound by whatever rule of law gets announced.  Thus, so long as somebody makes the best arguments to the Court, there's no real unfairness to either party that comes from resolving an issue outside the scope of the cert question.  In Comcast, the argument for the respondents on the issue the Court actually decided had been presented by the respondent in Amgen.  So no harm, no foul.

However, typically, a decision to go beyond the cert question will not be rendered harmless by the coincidence that the Court also has another case truly presenting the issue the Court is decided.  In the more typical case, the Court simply won't have the benefit of full briefing and argument.  Even if that is not unfair to the losing party, it sacrifices protection for the public.  And yet, as I noted in response to the commenter, the Court quite often honors Rule 14.1 only in the breach.

For example, in Knox v. SEIU Local 1000, decided less than a year ago, we find Justice Sotomayor, joined by Justice Ginsburg, concurring only in the judgment, and complaining that she:

cannot agree with the majority’s decision to address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing. By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the Court’s proper role in our system of separated powers.

One finds such statements--and rejoinders that no, the issue really is within the scope of the question presented--dotting the U.S. Reports.  I haven't examined each one in detail, so I don't have a view about whether particular complaints are accurate, but they occur often enough to indicate that the Court frequently plows ahead rather than ordering re-argument or supplemental briefing.  It also appears that there's no real ideological valence to the decision to go beyond the cert question.

So, I stand by my descriptive/predictive bottom line.  If, in Windsor, the Court--or the decisive vote on the Court--is going to be cast on the basis of a question outside the scope of the cert question(s), the "official" course should be to order re-argument or supplemental briefing.  But that probably won't happen.


pvineman1 said...

Once again, a thoughtful, objective article by Prof. Dorf. I am glad to have found his blog.

I agree that the Court will not order re-argument or supplemental briefing in Windsor. But for a different reason.

Having plowed through all of the jurisdictional material -- the briefs, the oral arguments, and Prof. Lederman's extensive postings on SCOTUS Blog -- I am virtually certain that a majority of the Court will hold that (1) it does not have jurisdiction to address the US's cert petition; (2) BLAG does not have Art. III standing; and (3) the official proponents of Prop. 8 do not have Art. III standing.

Personally, I would like the Court to address the merits, as I believe that DOMA3 and Prop. 8 violate equal protection. But, trying to remain as objective as possible, and considering the clear hesitation on the part of some justices to prematurely dive into a highly contentious issue that is still percolating in the nation's courts and among its people, I don't believe that the Court will use either of these cases as the vehicle to decide the substantive issue.

I must say that I found Prof. Vicki Jackson's briefs to be the most persuasive. Although, Marty Lederman's SCOTUS Blog arguments (in favor of jurisdiction and standing) are powerful and laid out with meticulous detail.

I just don't believe that: (1) the United States has (in the Court) or had (in the Second Circuit or, for that matter, the district court) the "concrete adverseness" required by Art. III; (2) the Court will hold that BLAG -- not representing Congress, or even the full House or Senate -- has Art. III standing; or (3) the Prop. 8 proponents -- none of whom were ever authorized by California's legislative or executive branch to represent the interests of the state -- will be found to have Art. III standing.

There has been a paucity of commentary on the ramifications of the Court holding as I (humbly) predict.

For example, in Windsor, if there was no "concrete adverseness" (between Ms. Windsor and the US) at the district court level -- because both parties were in agreement that DOMA3 was unconstitutional -- should that court have simply entered a default judgment in favor of the plaintiff? Justice Scalia suggested this at oral argument, and I tend to agree.

Likewise, if the Prop. 8 proponents didn't have standing at the district court level, should the Court vacate that court's lengthy opinion and direct that court to simply grant the plaintiff's request for an injunction?

Any thoughts on where we go from here, if the Court denies jurisdiction, would be appreciated.

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Andrew Hyman said...

Someone needs a better spam filter.

As for standing, the Prop. 8 sponsors have a special status under state law as proponents, which has been recognized by the state Supreme Court. Those sponsors are required by law to make decisions in unison or not at all. They have a financial investment too, in the form of a filing fee. If they're denied standing, then the elected state officers can easily defeat any referendum by refusing to defend it in court. So, I think there's plainly standing in the California case. On the merits, gay couples get every substantive right as straight couples per Prop. 8, and so it's just semantics, and the people of California have a valid reason for using two different terms: i.e. there are two different types of relationships. The EP Clause does not give men any right to be officially called women, or vice versa, and I think the same idea applies here. Justice Kennedy was worried that the children of gay couples might feel insulted by not having "married" parents, but of course such a gay couple is free to hold itself out as "married" if they want, and Kennedy's concern would apply equally to children of polygamous parents, etc. So, if SCOTUS functions rationally, there would be standing in the Prop. 8 case, the Prop. would be deemed constitutional, and the people of California would be free to overturn it and reinstate it as often as they deem appropriate and wise.

In the DOMA case, I don't like the idea of the President being able to unilaterally destroy any statute he wants by refusing to defend it in court. During this (113th) Congress, the House adopted a resolution authorizing the BLAG to defend the constitutionality of section 3 of DOMA. I don't buy the argument that such a resolution needed to be passed earlier, given that the Obama administration switched course midstream, changing from a defense of DOMA to passivity. One could argue that both houses of Congress would have to authorize BLAG (instead of just one house), but then it would seem the President would have the power to veto such authorization. On the merits of DOMA, I don't think the federalism argument is remotely plausible, because it relies on the fact that the US Code uses the term "marriage" instead of another term like "marredge", and this is just not a serious argument. As for equal protection, the overwhelming scholarly opinion is that the Fifth Amendment has no substantive component, and thus no equal protection component; Bolling v. Sharpe should have been based on non-constitutional grounds (per Michael McConnell). If SCOTUS decides to apply this non-existent equal protection principle of the Fifth Amendment to DOMA, then the federal treasury would open up for gay couples without any congressional authorization, the treasury would remain closed to other pairings (friends, siblings, neighbors, et cetera), and I'm not seeing where that result is particularly "equal". Moreover, supporters of such largesse would then have no motive to compromise legislatively, and so proposals to simply remove marriage from the US Code would effectively be defeated by a SCOTUS decision that exceeds its constitutional powers.

Joe said...

"I don't like the idea of the President being able to unilaterally destroy any statute he wants by refusing to defend it in court."

DOMA is still being enforced. Presidents not defending things in Court is not novel and John Roberts helped the President he worked for do it at least once.

"elected state officers can easily defeat any referendum by refusing to defend it in court"

The matter can still be defended in state court. Some third party often would have standing because the law affects them. So, "easily" means the latter isn't there and it is found unconstitutional in federal court. Dellinger listed various means to address the issue. "Easily" is hyperbole though the state ruling very well might be right as a matter of state law. The federal courts however might further more republican rules of standing.


I don't understand how one house of Congress has standing. Do they get to have standing when the President doesn't appeal some judgment of a lower court? Changing one's mind in that context is not novel. Could BLAG change its mind?


The federalist argument is that the specific law is about 'defining' marriage and it is such a bad fit for federal purposes that it doesn't have a proper federal purpose.

I would just use an EP argument myself. There is no "overwhelming" scholarship that the 5A doesn't have substantive component and McConnell's argument was challenged by Michael Klarman. Regardless, the USSC isn't going to sudden change gears from the point from the 19th Century.

The argument on EP grounds is that sex or sexual orientation is not a legitimate grounds to deny marriage benefits already provided under state law. "Other pairings" are not at issue here. Loving was not invalid because then states would have to give benefits to "friends."


I found Justice Breyer's comments on the standing in DOMA convincing: the US wants to wait to provide Windsor a tax benefit and she wants it now. That is a conflict, it is a case or controversy. It's great that the Administration supports her, but they are still enforcing DOMA.

I think Prof. Dorf provides a good realpolitik view in the OP. This is especially the case because the federalist argument bleeds into the EP argument. It is not out of the range of possibility that re-hearing will be set and the USSC should have added a federalist question since the issue was well known and surely in their minds. But, we shall see.

Andrew Hyman said...

"With respect to the fifth amendment due process clause, an overwhelming scholarly consensus holds that it protects only procedural rights." ---Frederick Mark Gedicks

Professor Gedicks was correct about that, but I agree that judges would be reluctant to give up a virtually absolute power.

As to the defendability of a referendum in state court, any opponent of the referendum can remove it to federal court whenever there's a federal issue, at which point the elected state officials can abandon all defense of the referendum (or better yet from their perspective, they can defend it in district court to make sure it's appealed to the Ninth Circuit, and then abandon the defense immediately after the Ninth Circuit decision).

The house is a constitutionally necessary actor in making laws, and the DONA case could reduce its lawmaking ability....hence standing.

GHW Bush enforced laws that he no longer defended in court. Acting Solicitor General John Roberts asked SCOTUS to overturn an affirmative action program at the FCC, and apparently the beneficiary of such a program would have standing to argue the other side (like BLAG arguably has now).

Joe said...

Quoting one scholar gets us nowhere. I have seen various scholarship both ways, including showing that SDP goes back to Coke. At best, the argument is that in 1791, SDP was not the norm. But, even then, the basic idea was, just expressed somewhat differently (see, e.g., Calder v. Bull). Pure originalism isn't how we do things and due process is more open to development than most things.

As to Prop 8 standing, how many of thousands, of state referenda were struck down in federal court? As noted, there are various ways to get standing. And, Art. III standing under our republican form of government (Art. IV) is by design somewhat antidemocratic.

The House still gets to propose and pass upon laws. The executive has the role of enforcement and repeatedly decides not to appeal for numerous reasons. The logic would give the House standing in each case since their lawmaking is burdened. Standing here clashes with basic separation of powers.

The last comment underlines that DOMA is not being "destroyed." It is being enforced. Vicki Jackson pointed out that other parties have standing even if both BLAG and the Administration is denied standing.

Paul.K said...

her or its arguments than does a non-party who will be subsequently bound by whatever rule of law gets announced. Thus, so long as somebody makes the best arguments to the Court, there's no real unfairness to either party that comes from resolving an issue outside the scope of the cert question. In Comcast, the argument for the respondents on the issue the Court actually decided had been presented by the respondent in Amgen. So no harm, no foul.Buy Runescape Gold | World of Warcraft Gold Kaufen

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