Arguably the most important case the Supreme Court handed down this past term was United States v. Windsor, in which Justice Kennedy, writing for a five-justice majority, declared unconstitutional the Defense of Marriage Act’s definition of marriage for federal purposes. Largely neglected in commentary on the case is the question the Court had to decide in order to take up the constitutional question—that of whether it had jurisdiction over the appeal. In dissent, Justice Scalia argued that it lacked jurisdiction and thus should not have decided the constitutionality of DOMA (though, assuming jurisdiction, he would have sustained the law). Scalia offered a compelling argument about what may seem a merely technical matter but which is always important in a government of separated powers—and in Windsor enormously so.

Edith Windsor and Thea Spyer were residents of New York state who were married in Canada in 2007. Having returned to their home in New York City, Spyer died in 2009, leaving her estate to Windsor, who sought to claim the federal estate tax exemption for surviving spouses. DOMA, however, stood in her way, since it defined “marriage” for federal purposes (such as the estate tax exemption) as “the union between one man and one woman as husband and wife” and “spouse” as “a person of the opposite sex who is a husband or a wife.” Windsor paid $363,053 in estate tax and sought a refund, which the Internal Revenue Service denied. Whereupon she brought suit claiming DOMA violated the Constitution.

With her suit pending, the Justice Department decided that it would continue to enforce DOMA but no longer defend in court the statute’s definition of marriage because the president believed it was unconstitutional. The district court ruled against the United States, holding that DOMA was unconstitutional and ordering the government to refund the tax. The U.S. Court of Appeals for the Second Circuit agreed with the district court. And on appeal to the Supreme Court, Scalia pressed the jurisdictional issue.

As he explained, the Constitution vests only the “judicial power” in judges, and that power is not “to decide abstract questions but real, concrete ‘Cases’ and ‘Controversies.’ ” It is

the power to adjudicate, with conclusive effect, disputed government claims .  .  . against private persons and disputed claims by private persons against the government or other private persons. Sometimes . . . the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it becomes [quoting Chief Justice Marshall’s famous statement on judicial review in Marbury v. Madison] the “province and duty of the judicial department to say what the law is.”

Indeed, “we are quite forbidden to say what the law is” whenever an act of Congress is said to conflict with the Constitution. “We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party.”

Scalia summarized the jurisdictional problem in Windsor this way: “[T]he plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that got it right as well.” And because both parties agreed with that court—and thus there was no controversy between them—“the suit should have ended there.”

And why didn’t it? Scalia wrote that the further proceedings were a “contrivance,” and he is right about that. The contrivers, he makes clear, were in the executive branch: Obama could have chosen neither to enforce nor to defend a law he believed unconstitutional. But then Windsor would not have been injured, and she would have had no case. Or Obama could have declined to appeal the judgment of the district court, or that of the appeals court, both of which he agreed with. But then the case could not have risen to the Supreme Court. Only a decision to enforce the law could have given the president a chance at what he wanted—a Supreme Court decision voiding DOMA on constitutional grounds. As a supporter of the president’s position anonymously told the New York Times early this year, “Without enforcement, there’s no means to challenge the law in court.” Scalia stated the matter succinctly: “This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional.”

Scalia said the errors in the Court’s decision in Windsor “spring forth from the same diseased root: an exalted conception of the role of this institution in America.” He seized on Kennedy’s description of the Court’s role in determining the constitutionality of a law as “primary,” and also on Kennedy’s worry that if the Court lacked the power to decide Windsor, then the Court’s role would “become only secondary to the President’s.” Scalia was right to call those sentiments “jaw-dropping,” for indeed they constitute an assertion, as he put it, of “judicial supremacy over the people’s Representatives in Congress and the Executive.”

The Obama Justice Department seemingly began playing to Kennedy in anticipation of a case like Windsor when it announced its enforce-and-don’t-defend position in early 2011. Justice said the position recognized “the judiciary as the final arbiter of the constitutional claims raised.” Strikingly, Kennedy criticized the president for his “failure to defend the constitutionality of an act of Congress based on a constitutional theory not yet established in judicial decisions,” even as he gave the president the decision he and his lawyers had contrived.

Windsor has significance for various reasons, but not least for achieving a dubious first. “In the more than two centuries that this Court has existed as an institution,” wrote Scalia, “we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer” (emphasis Scalia’s). But now the Court has decided such a question, having been asked to do so by an administration willing to go to unprecedented lengths to achieve its political goals.

Windsor is at odds with the Framers’ conception of the exercise of judicial power. It is not a power to be used when there is no real controversy before the Court, no real adversaries fighting it out. One can only hope for no more Windsors. But if majorities with loosey-goosey jurisdictional views now begin to emerge as a result of Windsor, we may be in for more jaw-dropping moments, as real damage is done to constitutional self-government.

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