Updated: the Solicitor General has moved for divided argument in Perry.

At their Conference this morning, one of the many issues the Justices will take up is the motion for divided argument in the Windsor challenge to the federal Defense of Marriage Act. A divided argument order provides for oral argument by more than just the petitioner and respondent.

In Windsor, divided argument is certain to be granted because the Court ordered additional briefing – and appointed an amica to argue – questions related to the parties’ “standing” (that is, their power to litigate in federal court). So the Supreme Court – having raised those issues – is sure to want to hear oral argument on them.

There is no parallel divided argument motion pending or forthcoming in the Perry challenge to Proposition 8. The Court did direct the parties to brief and argue the standing to appeal of the petitioners – the defenders of Proposition 8, who intervened in the case to defend the law when the state refused. But it did not need to appoint an amicus on the issue because the existing parties already disputed the answer: the respondents (the plaintiffs, who are challenging the law) argue that the petitioners lack standing.

For the same reason, the Court might well think it is unnecessary to provide for divided oral argument in Perry on that issue. Instead, as in any other case, the Justices could simply ask questions about standing in the course of the oral argument. That is the ordinary approach. But it may be a bad idea here.

The petitioners (Proposition 8’s defenders) have certainly offered a full-throated defense of their own standing. But the principal respondents (the private plaintiffs) – who will be the parties appearing at oral argument on that side of the case – haven’t presented a particularly serious argument on the standing issue: they spend only seven paragraphs of their brief on it. The brevity of the presentation on standing in the wake of a specific order from the Court is striking.

The inescapable take away from the respondents’ brief – in my opinion – is that they do want the Court to decide the case, and to decide it very broadly. The brief advances only an expansive legal theory, and it spends little effort trying to dissuade the Court from holding that the petitioners could not appeal. (The effect of that ruling would be to vacate even the narrow Ninth Circuit opinion in the respondents’ favor.) To be clear, I’m not complaining here about the strategy, which no doubt has received the very most serious consideration; I’m only trying to identify it.

There is very little reason to believe that the respondents will change gears at oral argument. Nothing about the Perry respondents’ brief suggests that on March 26 they will vigorously advocate for the position that the petitioners lack standing. To be clear, there is no chance that the respondents will concede standing. But it does seem likely that they will take every opportunity to move the argument to the merits. I cannot say that for certain and have nothing to go on beyond their brief; but it is the impression that the brief has almost gone out of the way to leave.

There is one other piece of the puzzle: the United States will seek leave to participate in the argument as an amicus. Assuming that request is granted, it is unclear whether the administration will argue against standing, as it does not address that issue in its brief at all.

So what is to be done? If the Court has a similar concern that the private respondents will not present a sufficient argument on the standing issue, and some of the Justices remain seriously interested in the standing question, then it has options. Another respondent – the City and County of San Francisco – has filed a brief that more seriously addresses the standing issue over the course of ten pages. Also, the state of California – which has an obvious direct interest in the outcome of the case, and should be quite knowledgeable about the state law issues that may complicate the federal standing question – has filed an amicus brief which argues at great length that petitioners lack appellate standing. (The most comprehensive argument against standing is in the Walter Dellinger brief by Irv Gornstein.) The Court could order divided argument and invite either San Francisco or California to participate on that issue.

It is common for the Court to divide argument between the parties, though it generally receives a motion making such a request. With respect to amicus participation, there is not much precedent for making such an invitation to an amicus after the briefs have been filed. The Justices have, however, permitted oral argument by an amicus that advocated an important position that a party did not, as in Pacific Bell Telephone Co. v. linkLine Communications (2008). There also seems no practical difference between appointing an amicus to argue in the first instance (which the Court does with some regularity), versus later inviting oral argument by an amicus that has already filed its brief. (For an example of an appointment on the question of jurisdiction, see not only the Windsor case but also Hohn v. United States (No. 96-8986), in which the Court appointed now-Judge Jeff Sutton.)

To be clear, I have absolutely no dog in the fight over whether these petitioners have standing. And I have no strong sense of what the best path to victory of either side in the case is. But there seems a real prospect that, although the Court has expressed significant interest in the standing of the petitioners in the case, that question is not poised to receive a full-throated, adversarial presentation. And the Court has increasingly taken a pragmatic approach to lots of issues to ensure that it does receive a complete airing of the important issues in cases.

No less significant is how the argument will proceed on the various defenses of the court of appeals’ judgment invalidating Prop 8. The private respondents argue for a broad right to same-sex marriage applicable in all the states. The federal government argues for the “eight-state solution” that would cover the states that already recognize same-sex civil unions. Neither seriously defends the Ninth Circuit’s rationale — applicable to California alone — that a state may not confer a right to same-sex marriage then revoke it. If the Court wants to hear a thorough defense of that theory, it is not likely to get it without appointing an amicus to argue.

These issues are important for structuring the oral argument. No advocate — not even Daniel Webster himself — could show up on March 26 and change one of the Justices’ views on the core question whether Proposition 8 is constitutional. That issue will have been resolved in their minds by then. But the oral argument could make a tremendous difference on which theory the Court adopts if it is not merely going to reverse on the merits, precisely because there are so many theories. The argument will be only their second opportunity to discuss the case together. (The first was the Conference at which they voted to grant cert.) And it could be central to how the thinking of five Justices comes together to form a majority.

(This post was updated to address the question of the oral argument on the one-state theory.)

[Disclosure:  Tejinder Singh of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in this case.] 

Posted in Featured, Merits Cases

Recommended Citation: Tom Goldstein, Standing to argue standing, the one-state solution, etc. (updated), SCOTUSblog (Mar. 1, 2013, 1:00 AM), http://www.scotusblog.com/2013/03/standing-to-argue-standing/