Supreme Court Asks If It Can Even Consider Case Challenging DOMA

A Harvard Law School professor will argue that the Obama administration’s actions opposing DOMA mean the court can’t hear the appeal.

Edith Windsor is challenging the constitutionality of the Defense of Marriage Act.

Image by Eduardo Munoz / Reuters

WASHINGTON — The Supreme Court announced Tuesday that it will be hearing arguments from a Harvard Law School professor about whether the court even has the ability to hear a case challenging the Defense of Marriage Act.

Specifically, the court asked Harvard law professor Vicki Jackson to argue that the Department of Justice’s position in earlier proceedings in the case that DOMA is unconstitutional “deprives this Court of jurisdiction” to hear the appeal. Additionally, Jackson is to argue that the House Bipartisan Legal Advisory Group (BLAG), controlled by the House Republican leadership’s majority in the group, does not have standing in the case.

The procedural questions relate to the U.S. Constitution’s limits on the court’s cases to those involving actual “cases” or “controversies.” The court is considering whether the Obama administration’s decision to agree with the plaintiff suing the government that the law is unconstitutional makes this no longer an actual controversy. Likewise, the court is considering whether BLAG — as a part of the legislative branch — has the constitutional ability to present an argument as a party to the case.

The move came days after the court announced it would be hearing the appeal about the federal definition of marriage contained in the 1996 law, at which point it noted that it was considering this jurisdictional question.

Tuesday’s appointment of Jackson, however, takes a dispute that has been taking place on the sidelines of the case up to this point and makes it a central issue in the coming months.

Jackson, the Thurgood Marshall Professor of Constitutional Law at Harvard, is the co-author of the 2008 book, Inside the Supreme Court: The Institution and Its Procedures. She also is the author of an essay, “Gender Equality and the Idea of a Constitution: Entrenchment, Jurisdiction and Interpretation,” contained in a 2009 book about comparative constitutional law.

3. Tuesday’s Supreme Court Order