by Matthew Nelson

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(This article originally appeared on As It Ought To Be)

The Supreme Court has been getting a lot of attention lately. With the deluge of end-of-term decisions over, it seems everyone is taking turns surveying the damage. But while most commentators ask “helping-or-hurting” questions – How big of a setback was the Prop 8 ruling for marriage traditionalists? Did racism win the day at the University of Texas? – I want to draw attention to a different set of questions raised by two of the year’s biggest decisions. These decisions, on gay marriage and voting rights respectively, offer an excellent opportunity to revisit our government’s famed system of “checks and balances” and ask just what we expect the various branches to do to get along.

In United States v. Windsor, the Court struck down a provision of the Defense of Marriage Act (DOMA) that prevented even already-married same-sex couples from receiving the benefits of a federally acknowledged marriage. It did so because it found that the law violated the so-called “due process clause” of the Fifth Amendment.  So far, so good – this much accords well with our ordinary conception of how the federal government works – the legislature enacts laws, and the judiciary reviews their constitutionality. But in order to get to a place where they could even rule on DOMA’s constitutionality, the Court first had to answer a strange procedural question – was there even a real case to decide?

The problem was that the two sides seemed to agree on the correct ruling. Both the plaintiff, Edith Windsor, and the defendant, the U.S. Government (as represented by its Executive Branch), agreed that the law was unconstitutional. Accordingly, Ms. Windsor ought to be entitled to a refund of more than $350,000 in taxes that she was forced to pay on the estate of her deceased spouse, Thea Spyer, because under DOMA her same-sex marriage did not qualify her for surviving-spouse tax exemption. This led Justice Scalia, in oral arguments, to ask why the case had made it to the Supreme Court at all. What made it different from a debt-related lawsuit where the debtor agrees he owes money but just refuses to pay? In that case, there is no case – the debtor owes the money, no questions asked.

But the Executive Branch disagreed…kind of. Although they refused to defend DOMA’s constitutionality, they insisted on enforcing it and requested that the Court continue with the case as if everything were normal. However, because the Executive refused to defend the law, the Bipartisan Legal Advisory Group from the House of Representatives had to step in instead. Their representative, Paul Clement, pointed out that this convoluted scheme had already led at the District Court level to “the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.” Justice Kennedy noted that that is enough to “give you intellectual whiplash.” Indeed.

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