From WSJ Washington Wire:
Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.
Roberts has been very critical of the Obama Administration changing positions during the course of litigation. This may be the most egregious example.
Nino said it was a whole “new world.” (He must have been watching Aladdin last night).
Justice Antonin Scalia cited the longstanding Office of Legal Counsel memorandum that requires the Justice Department to defend laws passed by Congress, except in rare circumstances. He called it a “new world” where Attorney General Eric Holder can decide a law is unconstitutional, but yet not so unconstitutional that the executive branch won’t enforce the law.