127 Harvard Law Review Forum 10
10 Pages Posted: 21 Nov 2013 Last revised: 22 Nov 2013
Date Written: 2013
In Windsor and Brown: Marriage Equality and Racial Equality, Professor Michael Klarman convincingly argues that the U.S. Supreme Court’s ruling in United States v. Windsor “became conceivable only because of enormous changes in the surrounding social and political contexts.” In emphasizing external over internal factors, Klarman claims that “doctrine played little role in the outcome of . . . Windsor.” Yet this response argues that doctrine — and more specifically the mobilization and construction of doctrine in lower courts and in nonjudicial domains — contributed to the result in Windsor by shaping the legal and political context in which the Court intervened. LGBT advocates leveraged heightened scrutiny to pressure elected officials and convince lower court judges to support the marriage equality cause. In doing so, they shaped the backdrop against which the Court resolved the issue in Windsor, even though the Windsor opinion offered no analysis of heightened scrutiny. Even if, as Klarman suggests, doctrine does little to constrain the Justices in landmark Supreme Court decisions, doctrine plays a significant role outside and below the Court. Ultimately, doctrine shapes the environment that Klarman convincingly shows influences the Justices in cases like Windsor.
Keywords: doctrine, constitutional law, constitutional theory, backlash, adjudication, same-sex marriage, Windsor, DOMA
Suggested Citation: Suggested Citation
NeJaime, Douglas, Doctrine in Context (2013). 127 Harvard Law Review Forum 10; UC Irvine School of Law Research Paper No. 2013-156. Available at SSRN: https://ssrn.com/abstract=2357797