TOday, she said, No.
In the filing, the professor, Vicki Jackson, argued:But note this:
The United States' agreement with the courts below (and with Windsor) deprives this Court of jurisdiction, because the United States suffers no injury sufficient to invoke Article III jurisdiction.In discussing why the House Bipartisan Legal Advisory Group — the 3-2 Republican majority of which voted to take up the defense of DOMA after the administration's 2011 decision to stop defending the law — does not have the authority, or standing, to be there, Jackson argued:
It is the Executive Branch, not Congress, that is obligated to "take Care" that laws are enforced. Moreover, any injury that might arise from nondefense of a law would be to the whole Congress, which one House cannot alone assert.
The Supreme Court appointed Jackson to argue these positions because, presumably, the justices decided they wanted a view outside of the views presented before lower courts on these questions. By the terms of that appointment, then, it was expected that Jackson would be arguing these views.
This is their "out" on the DOMA case. Of course, then they leave DOMA in a mess, because it would be applicable in some circuits and not others. (At least, Clause 3, which is the only clause under challenge, and is the clause regarding federal recognition of marriage.)