Case Western Reserve Law Review
Robert F. Nagel, Same-Sex Marriage, Federalism, and Judicial Supremacy, 64 Case W. Res. L. Rev. 1119 (2014), available at https://scholar.law.colorado.edu/articles/85.
Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.
Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when it presents no serious challenge to national authority. Indeed, the cases indicate that he is deeply fearful that a robust system of federalism would be dangerous to nationhood. Furthermore, he sees national authority as fragile in part because he has long understood the Court's constitutional decisions, a principal symbol of nationhood, as being based only loosely in conventional legal authority and, therefore, to be highly contestable. The Windsor opinion's imprecise argumentation reflects this skepticism about the conclusiveness of conventional legal authority.
Perversely, it is this same skepticism that has led Justice Kennedy to support a strong version of judicial supremacy in cases like Casey v. Planned Parenthood, where a state contested the Court's interpretative power, and Brown v. Plata, where a state undermined a federal court's remedial authority. Thus, Windsor cannot realistically be viewed as being based on respect for state authority over the issue of marriage; rather, Justice Kennedy's opinion in Windsor insists that Congress should have deferred to New York's definition of marriage because that definition reinforced, rather than challenged, the Court's earlier pronouncements on gay rights in Romer v. Evans and Lawrence v. Texas. In short, Windsor rests on an exalted view of the need for the Supreme Court's supremacy and at the same time exhibits the reasons for self-doubt that underlie this exalted view.
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