Understanding United States v. Windsor and the symposium contributions using unidirectional and bidirectional models of Supreme Court decision making.

• Author: Kahn, Ronald

ABSTRACT

This Article explores the landmark case of United States v. Windsor, which ruled that Section 3 of the Defense of Marriage Act ("DOMA") was unconstitutional on Due Process and Equal Protection grounds. The Article examines the ways in which the Windsor decision builds upon rights and polity principles from previous gay rights cases, such as Romer v. Evans and Lawrence v. Texas, and contributes to a line of doctrine that exemplifies "bidirectional" Supreme Court decision making.

The Article's starting point is the observation that from 1969 to 2006, thirteen of the fifteen appointees to the Supreme Court have been by Republican presidents. The Article asks why rights created in the Warren and Burger Court eras have not only been preserved, but in many instances have been strengthened. In other words, why does a conservative Court in our present conservative political age make significant decisions based on strong rights principles and a concern for minority interests?

The answer lies in the nature of Supreme Court decision making, which is viewed as unique and different from the way that political institutions--more directly accountable to popular opinion and election results--craft law and policy. The Supreme Court engages in the bidirectional, mutual construction of text, precedent, and doctrine and the lived lives of persons outside the Court. At the heart of bidirectional decision making is a social construction process. Social constructions become as much a part of cases, precedents, and the case before the Supreme Court as are rights principles. In any given case, the Court brings the internal world of its jurisprudence into conversation with the realities of the world beyond its walls, thereby constructing new avenues of doctrine and precedent that draw on both constitutional text and case law that precede them and the social constructions in precedents.

The model of bidirectional Court decision making--"Model 2"--is juxtaposed against a Model 1, unidirectional explanation of Supreme Court decision making. Scholars employing Model 1 explanations of Court decision making assert that justices on the Court makes decisions based on either internal elements--such as constitutional text or legal precedent--or factors external to the Court--such as politics, legal advocacy, personal ideological affiliation or policy wants of justices, or the views of presidents who made Court appointments. Model 1 scholars accept what Brian Tamanaha calls the "formalist-realist divide," a separation that is absent from Model 2 scholarship. Most constitutional theorists, including Mark Tushnet, Cass Sunstein, Randy Barnett, and old and new originalists, such as Antonin Scalia and Jack M. Balkin, respectively, also accept the divide and fail to recognize the bidirectionality of Court decision making in their theories of what the Court should do when it makes constitutional choices, and also are found wanting for doing so.

The Article concludes with an examination of the contributions to this Symposium in light of the above analysis. It investigates the Articles presented, dividing them into three groups--Doctrinal, Institutional, and Policy--based on the primacy focus of each symposium contribution. Each contribution is discussed with respect to Windsor as a clear and forceful example of bidirectional Court decision making and the efficacy of Model 2 explanations of Court decision making as predictors of future Court action.

CONTENTS INTRODUCTION I. UNIDIRECTIONAL AND BIDIRECTIONAL MODELS OF COURT DECISION MAKING A. Background: The Formalist-Realist Divide B. Model 1: Unidirectional Model for Explaining What a Court Does, or Should Do C. Model 2: Court Decision Making as a Bidirectional, Mutual Construction Process II. UNITED STATES V. WINDSOR: A PRODUCT OF BIDIRECTIONAL SUPREME COURT DECISION MAKING III. UNIDIRECTIONAL AND BIDIRECTIONAL METHODS OF ANALYSIS IN SYMPOSIUM CONTRIBUTIONS A. Doctrinal Analyses 1. Nancy C. Marcus 2. Sherif Girgis 3. Maggie Gallagher and William C. Duncan 4. Andrew Koppelman 5. Ernest A. Young B. Institutional Analyses 1. Robert F. Nagel 2. Robin Fretwell Wilson 3. Susan J. Becker 4. Nancy Scherer C. Policy Analyses 1. Helen M. Alvare 2. Frances Goldscheider CONCLUSION INTRODUCTION

One would have expected the Supreme Court in the late twentieth and early twenty-first centuries--and now--to be conservative. Since 1969, when President Richard Nixon named Warren Burger as Chief Justice, through President George W. Bush's appointments of Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006, Republican presidents have made thirteen of fifteen appointments to the Supreme Court, thus constituting a clear majority of appointees in any given year. (1)

The Supreme Court, however, "has not overturned any of the major individual rights cases from the progressive Warren Court era (1954-1969). Moreover, during the years under Chief Justice Warren Burger (1969-1986), the Supreme Court expanded individual rights in significant ways," (2) such as deciding that a woman has a constitutional right to elect abortion in Roe v. Wade, (3) that gender classifications under the law would be subject to heightened judicial scrutiny in Craig v. Boren, (4) and that race can be one factor among many in the admission of students to colleges and universities in Regents of the University of California v. Bakke. (5)

During the Rehnquist Court, the Supreme Court reaffirmed the right to abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey (6) and overturned Bowers v. Hardwick (7) and extended the implied fundamental rights of privacy and personhood to homosexuals, specifically in terms of the right to sexual intimacy, in Lawrence v. Texas (8) (thereby overturning Bowers v. Hardwick). As well, the Court reaffirmed the Bakke principle that race may play a role in university admissions in Grutter v. Bollinger, (9) and even heightened the level of scrutiny of gender classifications in United States v. Virginia (VMI). (10) Most importantly, in Romer v. Evans, (11) a 6-3 decision, the Rehnquist Court invalidated a Colorado constitutional amendment that required all laws relating to homosexuals to be valid only through the process of amending Colorado's constitution. (12) The Court said this initiative by the people was invalid because it was based on pure animus against homosexuals and, thus, was a violation of the Equal Protection Clause. (13)

Even with the addition to the Court of Chief Justice Roberts in 2005 and Justice Alito in 2006, (14) the Supreme Court refused to overrule landmark cases. For example, in Parents Involved in Community Schools v. Seattle School District No. 1, (15) the Court refused to find that race could not be a factor in attempts by school boards to diversify public schools. (16) Similarly, in Fisher v. University of Texas at Austin, (17) the Court under Chief Justice Roberts reaffirmed the principles of Bakke and Grutter by allowing the continuation of race to be one "plus factor" among many in the University of Texas's undergraduate admissions process. (18)

This is not to say that the Roberts Court has not had an impact on doctrinal change. For example, the Roberts Court has generally been pro-business, dramatically reducing access to federal courts by those seeking to use class action suits to limit what many feel are discriminatory corporation policies, as well as reducing the impact of required arbitration agreements for those interacting with businesses. (19)

The Court also has defined new individual rights. In 2008, it established an individual right to keep and bear arms in the District of Columbia v. Heller (20) decision. Similarly, in National Federation of Independent Business v. Sebelius, (21) there is a stunning definition of a new individual right or liberty interest under the Commerce Clause that protects a person from being forced into interstate commerce by the national government, thereby possibly limiting the power of Congress to define what affects commerce for purposes of regulation. (22)

Most significantly, as we will discuss in Part II of this Article, in United States v. Windsor (23) the Court not only refuses to backtrack on the expansion of homosexuals' rights under the Due Process Clause in Lawrence (24) and under the Equal Protection Clause in Romer, (25) but it also chooses to expand homosexuals' rights under the Constitution (26) by declaring the nation's Defense of Marriage Act (27) (DOMA) unconstitutional, because it violates basic due process and equal protection principles by "imposing] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States." (28)

Moreover, the analysis presented below explains why the Supreme Court has let stand federal circuit court decisions that found unconstitutional state bans on same-sex marriage. It did so even though Windsor found only that it was unconstitutional for the national government to fail to recognize same-sex marriage rights that were established by states.

Thus, the Supreme Court has reaffirmed and expanded implied fundamental rights and equal protection under the law during a period of political dominance by social conservatives, evangelical Christians, and other groups who largely view the protection of their definition of family values as a central mission of government. (29) As I noted in a previous publication, "social conservatives hoped that Republican appointees to the Supreme Court would roll back abortion rights, gay rights, affirmative action policies, and the constitutional separation of church and state." (30) I argued, however, that the Supreme Court has surprisingly (or unsurprisingly) sustained doctrine in opposition to the core values comprising the base of the Republican Party or expanded rights in these doctrinal areas. (31)

We need to explain why the Court expanded gay rights in...