Let's pick up where we left off. So far, we've learned that some of the justices expressed concern about jurisdiction to hear Windsor. But, Professor Jackson's argument did not fare well at the Court, though, either. Several justices were likely moved the fact that the federal government is still on the hook for Edie Windsor's $350,000 claim. The mere fact that the Administration's tactics of first defending, then opposing, then winning, and still appealing is unprecedented, does not necessarily make it improper. The Administration's obligations to Ms. Windsor gave it the power to appeal to a higher court, so the Court has jurisdiction to hear the case no matter what. The standing of House Republicans to be the ones to defend DOMA becomes less important, in that case.
We learned that whether the House has standing seemed less of a concern for the Court than whether the procedure the Administration used to get the case got to the Court was proper. It is for this reason, taking it all with a healthy dose of salt, that I think the Court will find it has jurisdiction to hear the case.
AFTER THE JUMP, let's proceed to the substantive portion of the argument, where Paul Clement showed his true colors as an abettor of discrimination and the Court gave us every reason to think it finds DOMA unconstitutional. The question now is the rationale: Will we get a federalism/states' rights decision that would give us a victory, but come back to bite us the next time we're trying to defend a federal civil rights law we like? Or, will we get an equal protection holding that will advance the cause of gay rights in the courts for generations to come? I don't think we can answer this from the questioning alone, but we can tentatively conclude that:
Federalism played an important role in the justices' questioning, but not to the exclusion of equal protection. Look for a decision to be informed by both.
When it comes to Justice Kennedy, he showed consistent skepticism on federalism grounds.
The Chief Justice's toughest questions to the anti-DOMA attorneys involved a somewhat related hypothetical, suggesting that the Chief was scraping the bottom of the barrel to find a pro-DOMA argument.
CONTINUED, AFTER THE JUMP...