Windsor and brown: Marriage equality and racial equality

Harvard Law Review

Volumn 127, Issue 1, 2013, Pages 127-160

  Klarman, Michael J ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84888105837     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (298)

1. Inaugural Address, 2013 Daily Comp. Pres. Doc. 32 (Jan. 21, 2013).
2. 133 S. Ct. 2675 (2013).
3. 133 S. Ct. 2652 (2013).
4. Marty Lederman, The Court's Five Options in the California Marriage Case, SCOTUSblog (Mar. 1, 2013, 11:11 AM), http://www.scotusblog.com/2013/03/the-courts-five-options-in-the-california-marriage-case
5. Adam Liptak & Alicia Parlapiano, How the Court Could Rule on Same-Sex Marriage, N.Y. Times, June 14, 2013, at A18.
6. Perry v. Brown, 671 F.3d 1052, 1079 (2012) (asking whether "the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong relationships dignified by the official status of 'marriage,' and... to substitute the label of 'domestic partnership,'").
7. Brief for the United States as Amicus Curiae Supporting Respondents at 9-12, Hollingsworth, 133 S. Ct. 2652 (No. 12-144).
8. Brief for Respondents at 21-24, Hollingsworth, 133 S. Ct. 2652 (No. 12-144).
9. 133 S. Ct. at 2668. The Court's decision vacated the Ninth Circuit's ruling but left intact the district court's order invalidating Proposition 8 and enjoining its enforcement. The district court's injunction was ambiguous as to whether it applied only against clerks in the two counties where the plaintiff couples had sought marriage licenses or against clerks everywhere in the state. State officials had embraced the broader interpretation even before the Supreme Court's decision, and the California Supreme Court subsequently declined to stop those officials from compelling all county clerks to grant licenses to same-sex couples applying for them.
10. California: Gay Marriage Opponents Lose Another Round in Court, N.Y. Times, July 16, 2013, at A11
11. Marty Lederman, The Fate of Same-Sex Marriage in California After Perry, SCOTUSblog (June 26, 2013, 11:32 PM), http://www.scotusblog.com/2013/06/the-fate-of-same-sex-marriage-in-california-after-perry
12. Jennifer Medina, For California Couples, Uncertainty on Gay Marriage Turns from 'If?' to 'When?,' N.Y. Times, June 27, 2013, at A21.
13. 347 U.S. 483 (1954).
14. Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 147 (2004) [hereinafter Klarman, Jim Crow to Civil Rights].
15. W. E. B. Du Bois, The N.A.A.C.P. and Race Segregation, The Crisis, Feb. 1934, at 52, 53.
16. Klarman, Jim Crow to Civil Rights, supra note 12, at 146-52
17. Mark V. Tushnet, The NAACP's Legal Strategy Against Segregated Education, 1925-1950, at 36-37 (1987) (describing the appeal of litigating against segregation in higher education).
18. Gong Lum v. Rice, 275 U.S. 78 (1927).
19. William O. Douglas, Memorandum (Jan. 25, 1960), in The Douglas Letters 169, 169 (Melvin L. Urofsky ed., 1987) (quoting Justice Frankfurter) (internal quotation marks omitted).
20. Windsor, 133 S. Ct. at 2689 ("It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.").
21. William N. Eskridge Jr., Equality Practice, at ix (2002).
22. Michael J. Klarman, From the Closet to the Alta r: Courts, Backlash, and the Struggle for Same-Sex Marriage 45 (2012) [hereinafter Klarman, Closet to Alta r].
23. Letter from Andrew Fois, Assistant Att'y Gen., to Rep. Henry J. Hyde, Chairman, House Comm. on the Judiciary (May 14, 1996), in H.R. Rep. No. 104-664, at 33, 34 (1996) (stating that the Department of Justice "believes that [the law] would be sustained as constitutional").
24. Klarman, Jim Crow to Civil Rights, supra note 12, at 175 (alteration in original) (quoting President Roosevelt) (internal quotation marks omitted).
25. Robert J. Norrell, Reaping the Whirlwind 61 (1998) internal quotation marks omitted.
26. Mary L. Dudziak, Cold War Civil Rights (2011).
27. Klarman, Jim Crow to Civil Rights, supra note 12, at 178.
28. Grovey v. Townsend, 295 U.S. 45 (1935) (holding that a Democratic Party rule ex cluding African Americans from party primaries did not violate the Fourteenth or Fifteenth Amendments).
29. Smith v. Allwright, 321 U.S. 649 (1944).
30. Klarman, Jim Crow to Civil Rights, supra note 12, at 213.
31. Shelley v. Kraemer, 334 U.S. 1 (1948).
32. McLaurin v. Okla. State Regents for Higher Educ., 339 U.S. 637 (1950); Sweatt v. Painter, 339 U.S. 629 (1950).
33. Klarman, Jim Crow to Civil Rights, supra note 12, at 309 (quoting Memorandum from Felix Frankfurter (undated), microformed on Felix Frankfurter Papers, at Part 2, Reel 4, Frame 378 (Univ. Publ'ns of Am., Inc.) [hereinafter Memorandum from Felix Frankfurter]) (internal quotation mark omitted).
34. Quoting Memorandum from Felix Frankfurter, supra note 38) (internal quotation marks omitted.
35. Robert H. Jackson, Draft Concurrence, Brown v. Board of Education at 20 (Mar. 15, 1954) (on file with the Library of Congress, Manuscript Division, Papers of Robert H. Jackson, Box 184) [hereinafter Jackson Draft Concurrence]) (internal quotation marks omitted).
36. Klarman, Closet to Alta r, supra note 20, at 197.
37. 478 U.S. 186 (1986).
38. Klarman, Closet to Alta r, supra note 20, at 197.
39. Adam Liptak, Exhibit A for a Major Shift: Justices' Gay Clerks, N.Y. Times, June 9, 2013, at A1.
40. Klarman, Closet to Alta r, supra note 20, at 197
41. Sarah Dutton et al., Poll: 53% of Americans Support Same-Sex Marriage, CBS News (Mar. 26, 2013, 7:00 AM), http://www.cbsnews.com/8301-250_162-57576249/poll-53-of-americans-support-same-sex-marriage
42. "Knowing some one personally who is gay or lesbian appears to be an important factor in how Americans feel about the issue of same-sex marriage. While two-thirds of Americans with a close relationship to someone who is gay or lesbian think same-sex marriage should be legal, most without such a close relationship don't think so".
43. Clyde Wilcox et al., If I Bend This Far I Will Break? Public Opinion About Same-Sex Mar riage, in The Politics of Same-Sex Marriage 215, 237 (Craig A. Rimmerman & Clyde Wilcox eds., 2007).
44. By contrast, the absence of a coming-out analog in the race and abortion contexts may help to explain why change on those issues has been slower. The stark racial segregation that persists in most American spheres of life inhibits members of different racial groups from getting to know one another well.
45. Michael J. Klarman, Unfinished Business: Racial Equality in American History 197-198 (2007).
46. Similarly, perhaps one reason why public opinion has not become more supportive of abortion rights is that women who have had abortions infrequently "come out" by publicly sharing their experiences.
47. Klarman, Closet to Alta r, supra note 20, at 71-72.
48. "Yep, I'm Gay," Time, Apr. 14, 1997, at cover.
49. Klarman, Closet to Alta r, supra note 20, at 73.
50. Keith Bradsher, Reaching Out to Gay Voters, Bradley Calls for Equal Rights, N.Y. Times, Oct. 3, 1999, at A30
51. Chris Bull, Al Gore's Gay Vi sion, The Advocate, Sept. 14, 1999, at 40
52. James Dao & Katherine Q. Seelye, The Democratic Debate: Gore and Bradley Sing in Harmony in Latest Meeting, N.Y. Times, Mar. 2, 2000, at A24
53. The Debate Over Gay Troops, N.Y. Times, Jan. 8, 2000, at A12.
54. Klarman, Closet to Alta r, supra note 20, at 156-158.
55. Jackie Calmes & Peter Baker, Obama Endorses Same-Sex Marriage, Taking Stand on Charged Social Issue, N.Y. Times, May 10, 2012, at A1.
56. Michael Schwirtz, Democrats Unveil Party Platform, N.Y. Times (Sept. 4, 2012, 12:35 AM), http://thecaucus.blogs.nytimes.com/2012/09/04/democrats-unveil-party-platform.
57. Sarah Wheaton, G.O.P. and Democratic Senators Back Gay Marriage, N.Y. Times (Apr. 2, 2013, 12:33 PM), http://thecaucus.blogs.nytimes.com/2013/04/02/kirk-and-carper-announce-support -for-same-sex-marriage.
58. Erik Eckholm, As Victories Pile Up, Gay Rights Advocates Cheer 'Milestone Year,' N.Y. Times, Nov. 8, 2012, at P7
59. Same-Sex Marriage Rivals Concede in Washington, N.Y. Times, Nov. 9, 2012, at A17.
60. Michael M. Grynbaum, Fickle Wisconsin Sends a Trusty Progressive to the Senate, N.Y. Times, Nov. 10, 2012, at A11.
61. Democratic Attorneys General in Pennsylvania and New Mexico recently announced their unwillingness to defend laws excluding same-sex couples from marriage. In late July, the Register of Wills in Montgomery County, Pennsylvania, began issuing marriage licenses to same-sex couples on the ground that he believed the state's ban on same-sex marriage was unconstitutional and he would no longer enforce it.
62. Trip Gabriel, Move for Gay Marriage Gets a Lift in Pennsylvania, N.Y. Times, July 12, 2013, at A12
63. Chris Johnson, New Mexico AG Won't Defend State Marriage Law, Wash. Blade (July 23, 2013), http://www.washingtonblade.com/2013/07/23/n-m-atty-genl-wont-defend-state-marriage-law
64. Frank Otto, Pennsylvania Couples Defy State Same-Sex Marriage Ban, Denver Post (July 24, 2013, 6:09 PM), http://www.denverpost.com/ci_23725780/pa-couples-defy-state-same-sex-marriage-ban.
65. Sam Borden, A Female Star Comes Out, and the Sports World Shrugs, N.Y. Times, Apr. 19, 2013, at B15
66. Jason Collins, Franz Lidz, Why NBA Center Jason Collins is Coming Out Now, Sports Illustrated, May 6, 2013, at 34
67. Bob Velin, Orlando Cruz Becomes Boxing's First Openly Gay Man, USA Today (Oct. 3, 2012, 10:03 PM), http://www.usatoday.com/story/gameon/2012/10/03/orlando-cruz-is-boxings-first-openly-gay-man/1612095
68. Billy Witz, Milestone for Gay Athletes as Rogers Plays for Galaxy, N.Y. Times (May 27, 2013), http://www.nytimes.com/2013/05/28/sports/soccer/milestone-for-gay-athletes-as-robbie-rogers-plays-for-galaxy.html.
69. Romer v. Evans, 517 U.S. 620, 623-24 (1996).
70. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
71. Transcript of Oral Argument at 107, Windsor, 133 S. Ct. 2675 (No. 12-307) [hereinafter Windsor Transcript] (Scalia, J.).
72. Asking whether "the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful". Chief Justice Roberts apparently intended his observation as an argument against the need for judicial inter vention on behalf of gays and lesbians.
73. Roe v. Wade, 410 U.S. 113 (1973); Furman v. Georgia, 408 U.S. 238 (1972).
74. Stuart Banner, The Death Penalty 239 (2002)
75. Noting that as of the early 1960s, commentators considered the constitutionality of the death penalty so obvious as to be "scarcely worth discus sion".
76. David J. Garrow, Liberty and Sexuality, at ix (1998)
77. Noting that a constitutional right to abortion was "unimagined" before Griswold v. Connecticut, 381 U.S. 479 (1965), was de cided in 1965.
78. Klarman, Jim Crow to Civil Rights, supra note 12, at 292-312.
79. Mark V. Tushnet, Making Civil Rights Law 210 (1994)
80. Arguing that as of the initial conference deliberations, "it was clear that a majority was prepared to hold segregation unconstitutional".
81. Klarman, Jim Crow to Civil Rights, supra note 12, at 294
82. "Vinson was of the opinion that the Plessy case was right and that segregation was constitutional.... Clark was inclined that way." (quoting Memo randum from William O. Douglas to the file (May 17, 1954) (on file with the Library of Congress, Manuscript Division, Papers of William O. Douglas, Box 1149)) (internal quotation mark omitted).
83. For further discussion of why these Justices found Brown hard.
84. Quoting Justice Black) (internal quotation marks omitted.
85. Quoting Justice Jackson) (internal quotation mark omitted, Quoting a memorandum from law clerk William H. Rehnquist to Justice Jackson, in which he questioned whether striking down school segregation would eliminate any distinction between this Court and the Lochner-era one, except for "the kinds of litigants it favors and the kinds of special claims it protects," William H. Rehnquist, A Random Thought on the Segregation Cases (on file with the Library of Congress, Manuscript Division, Papers of Robert H. Jackson, Box 184) (internal quota tion marks omitted)).
86. Jeffrey Toobin, The Oath 50 (2012) (noting that "so many" of the Roberts Court's rulings are determined by Justice Kennedy's vote).
87. E.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
88. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).
89. E.g., Citizens United v. FEC, 130 S. Ct. 876 (2010).
90. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
91. E.g., Printz v. United States, 521 U.S. 898 (1997); United States v. Lopez, 514 U.S. 549 (1995).
92. 531 U.S. 98 (2000).
93. E.g., Gonzales v. Carhart, 550 U.S. 124 (2007).
94. E.g., Grutter v. Bollinger, 539 U.S. 306 (2003).
95. E.g., Roper v. Simmons, 543 U.S. 551 (2005).
96. E.g., Lee v. Weisman, 505 U.S. 577 (1992).
97. E.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
98. E.g., Vieth v. Jubelirer, 541 U.S. 267 (2004).
99. E.g., Boumediene v. Bush, 553 U.S. 723 (2008).
100. The big exception was health care, Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), where Chief Justice Roberts turned out to be the swing vote - for the first time in a con stitutional case.
101. See, e.g., Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971 (2010); Lawrence v. Texas, 539 U.S. 558 (2003); Romer v. Evans, 517 U.S. 620 (1996). But see Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
102. See Beller v. Middendorf, 632 F.2d 788, 810 (9th Cir. 1980).
103. 517 U.S. 620 (1996).
104. 539 U.S. 558 (2003).
105. For the longstanding debate over how much traditional legal sources constrain judicial decisionmaking, see, for example, the sources cited in Klarman, Jim Crow to Civil Rights, supra note 12, at 4-5, 5 n.2.
106. I have limited myself in the text to the claim that legal doctrine matters little in landmark constitutional decisions, and this Comment is hardly the place to defend any broader claim. For what it is worth, though, my own view is that all constitutional rulings are a function of both legal factors - such as text, original understanding, and precedent - and more "political" considerations - such as judges' views on the underlying policy issues and their strategic calculations regarding whether a ruling will affect courts' institutional legitimacy and generate political backlash. Moreover, the more passionately judges care about the underlying policy issue, the less constraint they are likely to feel from the traditional legal sources. Thus, for example, in Bush v. Gore, where the Justices presumably had strong preferences about the outcome of the 2000 presidential election, the law went pretty much out the window.
107. Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89 Calif. L. Rev. 1721, 1724-47 (2001) [hereinafter Klarman, Bush v. Gore].
108. Klarman, Jim Crow to Civil Rights, supra note 12, at 296
109. First, second, and sixth alterations in original) (quoting William O. Douglas, Conference Notes, Brown v. Board of Educa tion and Bolling v. Sharpe (Dec. 13, 1952) (on file with the Library of Congress, Manuscript Divi sion, Papers of William O. Douglas, Box 1150) [hereinafter Douglas Conference Notes]) (internal quotation mark omitted). Justice Douglas's conference notes are not a transcription and may not perfectly capture what was said, but they have generally proved pretty accurate.
110. For further elaboration of the argument that the original understanding of the Fourteenth Amendment did not bar school segregation.
111. Michael J. Klarman, Response, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 Va. L. Rev. 1881 (1995).
112. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947 (1995).
113. Edith Udell Fierst, Note, Constitutionality of Educational Segregation, 17 Geo. Wash. L. Rev. 208, 214 n.30 (1949).
114. Klarman, Jim Crow to Civil Rights, supra note 12, at 306
115. Quoting Harold H. Burton, Conference Notes, School Segregation Cases (Dec. 12, 1953) (on file with the Library of Congress, Manuscript Division, Papers of Harold H. Burton, Box 244).
116. Brown v. Bd. of Educ., 347 U.S. 483, 489 (1954) (concluding that the original understanding of the Fourteenth Amendment with regard to school segregation was "inconclusive").
117. Noting that in determining the constitutionality of public school segregation, "we cannot turn the clock back to 1868 when the Amendment was adopted".
118. Lucas A. Powe, Jr., The Warren Court and American Politics 43 (2000) (de scribing the deficiencies in the social science evidence).
119. Brown, 347 U.S. at 493 ("Today, education is perhaps the most important function of state and local governments.").
120. For these cases and contemporary criticism of them for being inadequately reasoned, see Klarman, Jim Crow to Civil Rights, supra note 12, at 321.
121. See Transcript of Oral Argument at 37-41, Hollingsworth, 133 S. Ct. 2652 (No. 12-144) [hereinafter Hollingsworth Transcript] (Scalia, J.) (asking respondents' lawyer Theodore B. Olson when the Constitution came to protect same-sex marriage and Olson responding with his own question - when did it come to bar public school segregation?).
122. E.g., Windsor, 133 S. Ct. at 2689-90 ("By history and tradition the definition and regulation of marriage... has been treated as being within the authority and realm of the separate States."); ("[T]he Federal Government, through our history, has deferred to state-law policy deci sions with respect to domestic relations.").
123. "[I]t is unnecessary to decide whether this federal intrusion on state power [in flicted by DOMA] is a violation of the Constitution because it disrupts the federal balance".
124. Scalia, J., dissenting (arguing that, "given the Federal Government's long history of making pronouncements regarding marriage," its enumerated powers undeniably allow it to define marriage for federal law purposes); (Alito, J., dissenting) ("Assuming that Congress has the power under the Constitution to enact the laws affected by § 3 [of DOMA], Congress has the power to define the category of persons to whom those laws ap ply."); Windsor Transcript, supra note 63, at 81-82 (Solicitor General Verrilli conceding that DOMA posed only an equal protection issue, not a federalism one).
125. See, e.g., Windsor, 133 S. Ct. at 2692 (addressing whether the "injury and indignity" inflict ed by section 3 of DOMA "is a deprivation of an essential part of the liberty protected by the Fifth Amendment"); see also id. at 2705-06 (Scalia, J., dissenting) (noting that the majority opinion seems to rely not on equal protection concepts specifically but on the Fifth Amendment more generally).
126. E.g., Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (noting that interests protected by substantive due process must be "deeply rooted in this Nation's history and tradition" (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion) (internal quotation marks omitted))).
127. Windsor, 133 S. Ct. at 2706-07 (Scalia, J., dissenting) (noting that such a claim would be "quite absurd"); (Alito, J., dissenting) ("It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation's history and tradition").
128. Scalia, J., dissenting (labeling the majority's failure to identify a standard of review "confusing").
129. See, e.g., In re Marriage Cases, 183 P. 3d 384, 401 (Cal. 2008) (relying on strict scrutiny); Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 412 (Conn. 2008) (relying on intermediate scru tiny); Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa 2009) (relying on intermediate scrutiny).
130. See Windsor, 133 S. Ct. at 2693 (noting that "[t]he avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma" upon same-sex couples lawfully married under state law); (stating that DOMA "demeans" the members of same-sex couples who are lawfully married under state law); ("[T]he principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.").
131. See Brief on the Merits for Respondent The Bipartisan Legal Advisory Group of the U.S. House of Representatives at 37-38, Windsor, 133 S. Ct. 2675 (No. 12-307) [hereinafter Brief on the Merits for Respondent BLAG] (arguing that when past Congresses chose to provide federal bene fits to married couples, they were indisputably referring to opposite-sex couples).
132. Arguing that a principal justification of DOMA was ensuring a uniform definition of marriage for federal purposes which would, for example, ensure that military mem bers would not resist a posting in a more restrictive state because it would adversely affect their federal benefits); see also Windsor, 133 S. Ct. at 2696 (Roberts, C.J., dissenting) (relying on federal interests in uniformity and stability as sufficient to sustain the constitutionality of DOMA); Scalia, J., dissenting) (noting that the majority does not even bother to describe, much less grapple with, the principal arguments used to defend DOMA).
133. See Romer v. Evans, 517 U.S. 620, 644 (1996) (Scalia, J., dissenting) (noting the Court's con flation of "animus" and moral disapproval (quoting id. at 632 (majority opinion) (internal quota tion marks omitted)).
134. Win d s o r, 133 S. Ct. at 2693 (quoting U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973)).
135. Richmond newspaper editor James J. Kilpatrick stated a typical view: "In May of 1954, that inept fraternity of politicians and professors known as the United States Supreme Court chose to throw away the established law. These nine men repudiated the Constitution, sp[a]t upon the tenth amendment, and rewrote the fundamental law of this land to suit their own gauzy concepts of sociology." Court Order Gets Varied Reaction from Region's Newspapers, S. Sch. News, June 8, 1955, at 8 (quoting The Richmond News Leader) (internal quotation mark omitted).
136. Learned Hand, The Bill of Rights 55 (Atheneum 1977) (1958).
137. Herbert Wechsler, T o w a r d Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 34 (1959).
138. See, e.g., Letter from William H. Rehnquist, Assistant Att'y Gen., to Sen. James Eastland, Chairman, Senate Comm. on the Judiciary (Dec. 8, 1971), in S. Exec. Rep. No. 99-18, at 25, 26 (1986) (denying that views hostile to the result in Brown expressed in a memorandum he authored as a law clerk to Justice Jackson during the 1952 Term were his own, and stating, "I... unequivocally... support the legal reasoning and the rightness from the standpoint of fun damental fairness of the Brown decision").
139. Richard Kluger, Simple Justice 606 n. (1975)
140. Describing Rehnquist's denial that the memorandum bearing his initials represented his own views, and concluding that he was lying.
141. Brad Snyder, How the Conservatives Canonized Brown v. Board of Education, 52 Rutgers L. Rev. 383, 445 (2000)
142. Concluding that future Chief Justice Rehnquist understood in 1971 that "you could not disagree with Brown and get con firmed" and thus decided to lie about the views he had held in 1952-1953 about the constitution ality of school segregation.
143. Robert H. Bork, The Tempting of America 77 (1990)
144. "[A]ny [constitu tional] theory that seeks acceptance must, as a matter of psychological fact, if not of logical neces sity, account for the result in Brown"; McConnell, supra note 97, at 952 (noting that any theory unable to accommodate Brown is "seriously discredited").
145. See infra Part V, pp. 154-61.
146. Klarman, Jim Crow to Civil Rights, supra note 12, at 292 (noting that some civil rights leaders criticized the NAACP for not challenging inequality rather than segregation).
147. Noting that a Court decision invalidating segregation on bus transportation likely would have generated far less political backlash than did Brown.
148. Michael Klarman, An Interpretive History of Modern Equal Protection, 90 Mich. L. Rev. 213, 238-39, 241-46 (1991) (noting and trying to explain the decision to write the Brown opinion this way).
149. Gerald Gunther, Learned Hand 572-577 (2d ed. 2011) (noting Justice Frankfurter's subsequent explanation).
150. See Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955).
151. Klarman, Jim Crow to Civil Rights, supra note 12, at 312-320 (explaining why the Justices decided as they did and noting how their decision invited delay and circumvention).
152. Explaining how the Justices ducked the miscegenation issue and noting the humiliation they suffered as a result.
153. See Windsor, 133 S. Ct. at 2712 (Alito, J., dissenting) (noting that the argument in favor of justiciability was stronger in Hollingsworth than in Windsor).
154. Mark Tushnet, Perry and the Constitutionalization of Agency Law, Balkinization (June 26, 2013, 11:24 AM), http://balkin.blogspot.com/2013/06/perry-and-constitutionalization-of.html ("[T]he most accurate analysis is almost certainly that five Justices wanted to duck the merits at the moment....").
155. Interestingly, Justice Frankfurter seems initially to have contemplated a compromise ruling on school segregation that would have been quite similar to the split decision on marriage equality that the Court reached this Term: he would have immediately invalidated school segregation in the federally controlled District of Columbia and either deferred the state segregation cases for reargument or simply rejected the constitutional challenge there.
156. Klarman, Jim Crow to Civil Rights, supra note 12, at 300-301.
157. The argument against justiciability in Windsor was that no Article III case or controversy existed because the Obama Administration, which was appealing technically adverse rulings from the district court and the court of appeals, agreed with Windsor that DOMA was unconstitutional (though it continued to enforce the statute until barred from doing so by judicial decree). Windsor, 133 S. Ct. at 2700, 2702 (Scalia, J., dissenting) (noting that the Court had never before been willing to decide a case in which both parties agreed with the judgment being reviewed). Nor, on this view, could the presence on appeal of the intervenor, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, fill the adversity void because Congress, let alone one house of Congress, has no Article III standing to defend statutes in court unless the statutes involve some special legislative prerogative, such as the legislative veto that was at issue in INS v. Chadha, 462 U.S. 919 (1983). See Windsor, 133 S. Ct. at 2700-01 (Scalia, J., dissenting). Regardless of which side had the better of the justiciability argument in Windsor, the dissenters plainly had at least a colorable argument - Justice Kennedy's opinion admitted the strength of the argument that the Court should decline to hear the case based on considerations of prudential standing, (majority opinion) - which supports the notion that the majority was predisposed to reach the merits.
158. Hollingsworth, 133 S. Ct. at 2659.
159. Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997) ("Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated.").
160. Klarman, Jim Crow to Civil Rights, supra note 12, at 323 & n.77 (noting such criticism).
161. Perry v. Brown, 265 P.3d 1002, 1007 (Cal. 2011) ("In a postelection challenge to a voter- approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.").
162. Arizonans for Official English, 520 U.S. at 65-66 (noting "grave doubts" regarding the peti tioners' standing, id. at 66, partly because there was "no Arizona law appointing initiative spon sors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State").
163. California did not, of course, delegate the task of defending the constitutionality of an initia tive to a random citizen pulled off of the street. Initiative proponents are few in number; they have special familiarity with the measure being challenged; and they are unusually well motivated to defend it. See Hollingsworth, 133 S. Ct. at 2669-70 (Kennedy, J., dissenting). The majority in Hollingsworth was troubled by the fact that initiative sponsors are not in an agency relationship with the state, see id. at 2666-67 (majority opinion), but it failed adequately to explain why Arti cle III's standing requirement ought to be construed in light of the Restatement of Agency, (Kennedy, J., dissenting).
164. See, e.g., Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2623-24 (2013) (Roberts, C.J.) (defending states' "broad powers to determine the conditions under which the right of suffrage may be exer cised" (quoting Carrington v. Rash, 380 U.S. 89, 91 (1965)) (internal quotation marks omitted), against the requirement of the Voting Rights Act of 1965, 42 U.S.C. §§ 1973 to 1973bb-1 (2006 & Supp. V 2011), that "[s]tates... beseech the Federal Government for permission to im plement laws that they would otherwise have the right to enact and execute on their own," Shelby Cnty., 133 S. Ct. at 2624).
165. See, e.g., Printz v. United States, 521 U.S. 898, 928 (1997) (Scalia, J.) ("It is an essential at tribute of the States' retained sovereignty that they remain independent and autonomous within their proper sphere of authority.").
166. Hollingsworth, 133 S. Ct. at 2670-71 (Kennedy, J., dissenting).
167. Noting that to afford the governor and attorney general a "de facto veto" over whether to defend the constitutionality of an initiative in court would "erode one of the cornerstones of the State's governmental structure"); (criticizing the majority for "fail[ing] to grasp... the basic premise of the initiative process").
168. Windsor Transcript, supra note 63, at 47-48 (Kennedy, J.) (noting that the Court was being asked to enter "uncharted waters", and wondering whether review was "properly grant ed"); (Sotomayor, J.) (wondering why now was the time to decide the issue if states were "experiment[ing]" and the issue could instead be left to "per[colate]"). Ironically, Jus tices Kennedy and Sotomayor were among the dissenters in Hollingsworth, who believed that the Court should have reached the merits on the constitutionality of Proposition 8. One may wonder if they would have taken the same position had there not already been a majority of five to dis miss the case on standing grounds.
169. 410 U.S. 113 (1973).
170. Ruth Bader Ginsburg, Essay, Some Thoughts on Autonomy and Equality in Rela tion to Roe v. Wade, 63 N.C. L. Rev. 375, 376, 379-82, 385-86 (1985)
171. Ruth Bader Ginsburg, Madison Lecture, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1198-200, 1205-08 (1992).
172. Ruth Bader Ginsburg, Gillian Metzger & Abbe Gluck, A Conversation with Justice Ruth Bader Ginsburg, 25 Colum. J. Gender & L. 6, 15-16 (2013)
173. Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit, U. Chi. L. Sch. (May 15, 2013), http://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade -during-law-school-visit.
174. Klarman, Jim Crow to Civil Rights, supra note 12, at 295
175. Justice Reed remarking on the "constant progress in... the advancement of the interests of the negroes" and his conten tion that "states should be left to work out the problem for themselves" (quoting Douglas Confer ence Notes, supra note 96) (internal quotation marks omitted).
176. For scholarship on the strategic element in judicial decisionmaking, see the sources collected in Klarman, Jim Crow to Civil Rights, supra note 12, at 453 n.12. Some of the leading historical exemplars of such judicial strategizing include the supposed "retreat" of the Marshall Court during its final years, the Court's decision in Ex parte McCardle, 74 U.S. (7 W a l l.) 506 (1868), to allow Congress to remove its jurisdiction over a pending case challenging the constitu tionality of Reconstruction, the supposed "switch in time that saved Nine" in 1937, and the appar ent retreat from the Court's 1957 "Red Monday" decisions two years later. See Klarman, Bush v. Gore, supra note 95, at 1758-60.
177. Klarman, Jim Crow to Civil Rights, supra note 12, at 294 (noting that Justices Vinson and Black predicted school closures and violence if the Court invalidated school segrega tion); (noting how white southerners campaigned to convince the Court that immediate desegregation would result in violence).
178. Noting the Justices' desire to bolster southern racial moderates); Memo randum from Justice William O. Douglas for the In re Segregation Cases File 2 (May 17, 1954) (on file with the Harvard Law School Library) (noting that an unnamed Justice had suggested delay ing the release of the school-segregation decision until after the southern primary season had end ed in order to avoid adversely affecting election results). In seeking to anticipate and thus diminish back lash, the Justices probably exacerbated it, by rendering a decision that white southerners perceived to be weak and vacillating.
179. Klarman, Jim Crow to Civil Rights, supra note 12, at 319-320.
180. Klarman, Jim Crow to Civil Rights, supra note 12, at 322 (first alteration in original) (quoting Memorandum, Naim v. Naim, microformed on Papers of Felix Frankfurter, Part 2, Reel 17, Frames 588-90 (Univ. Publ'ns of Am., Inc.)) (internal quotation marks omitted).
181. Gerald N. Rosenberg, The Hollow Hope 185-195 (1993)
182. Michael J. Klarman, Why Backlash? 12-19 (Aug. 2010) (unpublished manuscript) (on file with the Harvard Law School Library) [hereinafter Klarman, Why Backlash?].
183. David J. Garrow, Abortion Before and After Roe v. Wade: An Historical Perspective, 62 Alb. L. Rev. 833, 840-41 (1999)
184. Linda Greenhouse & Reva B. Siegel, Feature, Be fore (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 2028, 2071-87 (2011) (same)
185. Geoffrey R. Stone, Justice Ginsburg, Roe v. Wade and Same-Sex Marriage, Huffington Post (May 12, 2013, 11:42 PM), http://www.huffingtonpost.com/geoffrey-r-stone/justice-ginsburg-roe-v-wa_b_3264307.html (same).
186. See sources cited supra notes 146-147.
187. Interview by Kathleen Walter with Brian Brown, President, Nat'l Org. for Marriage (Newsmax television broadcast Dec. 10, 2012), available at http://www.newsmax.com/US/proposition-eight-supreme-court/2012/12/10/id/467145 ("[The Court is not] going to launch anoth er culture war. It does not want another Roe v. Wade where the Court steps in and imposes its will on the whole country....").
188. Cheryl Wetzstein, Gay Marriage Ruling May Rival Roe v. Wa d e in Turmoil, Wash. Times, Mar. 11, 2013, at A1
189. Quoting John C. Eastman, Chairman of the Board of the National Organization for Marriage, as stating that Roe v. Wade "shut that [abortion] debate off, and locked in the country when it was at its greatest loggerheads - and we have remained at that locked-in position ever since" (alteration in original) (internal quotation marks omitted).
190. Klarman, Closet to Alta r, supra note 20, at 165-192.
191. Klarman, Why Backlash?, supra note 153.
192. Baehr v. Lewin, 852 P.2d 44, 67-68 (Haw. 1993) (holding that a law limiting marriage to the union of a man and a woman was a sex classification and thus subject to strict scrutiny under the state constitution, and remanding the case for a trial to determine if the state had a sufficiently compelling justification for excluding same-sex couples from marriage).
193. Klarman, Closet to Alta r, supra note 20, at 45 (noting opinion polls conducted around 1990 showing support for gay marriage between 11% and 23%).
194. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).
195. Klarman, Closet to Alta r, supra note 20, at 97-98.
196. Nate Silver, How Opinion on Same-Sex Marriage Is Changing, and What It Means, N.Y. Times (Mar. 26, 2013, 10:10 AM), http://fivethirtyeight.blogs.nytimes.com/2013/03/26/how-opinion-on-same-sex-marriage-is-changing-and-what-it-means.
197. 408 U.S. 238 (1972).
198. Klarman, Why Backlash?, supra note 153.
199. Klarman, Jim Crow to Civil Rights, supra note 12, at 365-366.
200. Klarman, Closet to Alta r, supra note 20, at 173.
201. Press Release, Langer Research Assocs., Poll Tracks Dramatic Rise in Support for Gay Mar riage 1-2 (Mar. 18, 2013), available at http://www.langerresearch.com/uploads/1147a5GayMarriage.pdf ("Intensity of sentiment about gay marriage also shows considerable change.... In 2004, strong opponents outnumbered strong supporters by a broad 34 percentage points. Today strong supporters are ascendant, outnumbering strong opponents by 11 points.").
202. Klarman, Jim Crow to Civil Rights, supra note 12, at 391-392 (noting that school desegregation was the racial reform to which white southerners were most adamantly opposed).
203. Sherif Girgis et al., What Is Marriage? Man and Woman 3-4, 6-7, 53-55 (2012)
204. Contrasting "conjugal", (emphasis omitted), and "revisionist," (emphasis omitted), views of marriage and explaining how promoting the latter interferes with the former); see also Brief of Petitioners at 53, Hollingsworth, 133 S. Ct. 2652 (No. 12-144) (explaining that permitting same-sex couples to marry would sever marriage from its traditional procreative purpose and reorient it away from raising children and toward satisfying the emotional needs and desires of adults).
205. Klarman, Closet to Alta r, supra note 20, at 186-192.
206. Klarman, Jim Crow to Civil Rights, supra note 12, at 407
207. Quoting George C. Wallace, Governor of Ala., Inaugural Address (Jan. 14, 1963)) (internal quotation mark omitted). For this paragraph, see id. at 389-408 (describing Brown's radicalization of southern politics and the phenomenon of massive resistance).
208. Andrew R. Flores & Scott Barclay, The Williams Inst., Public Support for Marriage for Same-Sex Couples by State 4 (2013).
209. Kate Zernike, Groups Vow Not to Let Losses Dash Gay Rights, N.Y. Times, Nov. 14, 2004, at N30.
210. Flores & Barclay, supra note 172, at 4.
211. Molly Ball, Now There Are 3 Republican Senators Who Support Gay Marriage, The Atlantic (June 19, 2013, 1:49 PM), http://www.theatlantic.com/politics/archive/2013/06/now-there-are-3-republican-senators-who-support-gay-marriage/277021.
212. See Brief of Amici Curiae Kenneth B. Mehlman et al. Supporting Respondents at app., Hollingsworth, 133 S. Ct. 2652 (No. 12-144).
213. Nicholas Confessore, Pushing the G.O.P. to Support Gay Rights, N.Y. Times, Apr. 27, 2013, at A10
214. Thomas Kaplan, A Campaign Windfall for 4 Republicans Who Voted for Same- Sex Marriage, N.Y. Times, Oct. 13, 2011, at A23.
215. Sheryl Gay Stolberg, Strategist out of Closet and into Fray, This Time for Gay Marriage, N.Y. Times, June 20, 2013, at A1.
216. Klarman, Closet to Alta r, supra note 20, at 183-186.
217. Klarman, Jim Crow to Civil Rights, supra note 12, at 358-360 (describing the schemes used by southern states to maintain segregation after Brown).
218. See, e.g., Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 760-63 (1986) (explaining how the informed consent requirement dissuades some women from obtaining abortions); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 431-37 (1983) (noting the unjustified burden that a hospitalization requirement imposes on women seeking abortions).
219. Erik Eckholm, Virginia Abortion Clinic Rules Get Final Approval, N.Y. Times, Apr. 13, 2013, at A14.
220. Manny Fernandez & Erik Eckholm, Texas House Restricts Abortions in a Move that Could Force Clinics to Shut, N.Y. Times, June 25, 2013, at A11.
221. Steve Inskeep, Mass. Justice of the Peace Resigns over Gay Marriage, NPR (May 14, 2004, 12:00 AM), available at http://www.npr.org/templates/story/story.php?storyId=1896321 (reporting that a Charlton, Massachusetts Justice of the Peace "chose to resign her post rather than perform gay marriages")
222. Dan Wiessner, New York Town Clerk Quits over Gay Marriage Li censes, Reuters (July 12, 2011, 6:25 PM), http://www.reuters.com/article/2011/07/12/us-gaymarriage-newyork-resignation-idUSTRE76B7BJ20110712.
223. Klarman, Closet to Alta r, supra note 20, at 128 (noting a Republican politician in Iowa calling on county recorders to defy the state court's gay-marriage ruling).
224. Noting the Iowa Attorney General's warning to county recorders that they must abide by the state court's ruling in favor of gay marriage.
225. Noting a Republican gubernatorial candidate in Iowa promising, if elected, to issue an executive order staying implementation of the state court's decision in favor of gay marriage.
226. Klarman, Jim Crow to Civil Rights, supra note 12, at 405-406, 433, 436-38 (de scribing "school house door" resistance of Ross Barnett and George Wallace)
227. Klarman, Closet to Alta r, supra note 20, at 150
228. Noting successful Iowa Republican gu bernatorial candidate Terry Branstad ridiculing the idea of gubernatorial defiance of the state court's gay-marriage ruling and explaining that such resistance would only lead to judicial con tempt citations.
229. Klarman, Jim Crow to Civil Rights, supra note 12, at 352-354.
230. Desegregation Suit Filed in Jackson, S. Sch. News, Mar. 1963, at 6
231. Greenwood Salesman Indicted in Death of NAACP Secretary, S. Sch. News, July 1963, at 2.
232. Dallas A. Blanchard, The Anti-Abortion Movement and the Rise of the Religious Right 112-114 (1994).
233. Fed. Bureau of Investigation, Hate Crime Statistics, 2011, at tbl.1 (2012), http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2011 (noting that the FBI reported an annual total of 1,508 hate crimes targeting victims because of their sexual orientation in 2011).
234. Michal R. Belknap, Federal Law and Southern Order (1987).
235. Klarman, Jim Crow to Civil Rights, supra note 12, at 427-428 (quoting speeches of southern politicians that implicitly encouraged violent opposition to Brown).
236. See infra notes 236-237 and accompanying text.
237. See Klarman, Bush v. Gore, supra note 95, at 1749.
238. Press Release, CNN/ORC Poll at 4 (June 11-13, 2013), available at http://i2.cdn.turner.com /cnn/2013/images/06/20/rel7d.pdf (noting that Americans by a margin of 60% to 39% think that the federal government should recognize same-sex marriages lawfully performed by the states).
239. Press Release, Washington Post/ABC News (June 5-9, 2013), available at http://apps.washingtonpost.com/g/page/politics/washington-post-abc-news-poll-june-5-to-9/224 (noting that Americans favor by 63% to 34% the federal government's provision of the same benefits to same- sex couples who are lawfully married as it gives to other married couples).
240. See Brief for Petitioner at 4-5, Windsor, 133 S. Ct. 2675 (No. 12-307)
241. Seeing a Step Toward Equality, or a Spark to Fight Gay Marriage, N.Y. Times (June 26, 2013), http://www.nytimes.com/2013/06/27/us/seeing-a-step-toward-equality-or-a-spark-to-fight-gay-marriage.html (noting President Obama's applauding of the Court's ruling in Windsor).
242. Klarman, Jim Crow to Civil Rights, supra note 12, at 308-309 & n.34
243. Noting that the nation was split down the middle on Brown); Silver, supra note 162 (noting that the margin in favor of gay marriage is now 8%).
244. Klarman, Jim Crow to Civil Rights, supra note 12, at 295.
245. Quoting Robert H. Jackson, Conference Notes (Dec. 12, 1952) (on file with the Library of Congress, Manuscript Division, Papers of Robert H. Jackson, Box 184)) (internal quo tation mark omitted.
246. Quoting Jackson Draft Concurrence, supra note 40, at 1.
247. See Silver, supra note 162 (noting that support for gay marriage increased by 6 percentage points from 1996 to 2003 and by 18 percentage points from 2003 to 2013); see also Flores & Barclay, supra note 172, at 7 (noting that over the last eight years, the average increase in sup port for gay marriage across the states has been 1.7% per annum).
248. Susan Page, Poll: Support for Gay Marriage Hits High After Ruling, USA Today (July 1, 2013, 10:38 PM), http://www.usatoday.com/story/news/politics/2013/07/01/poll-supreme-court-gay-marriage-affirmative-action-voting-rights/2479541.
249. Silver, supra note 162.
250. Press Release, Langer Research Assocs., supra note 167, at 2 ("[G]ay marriage is supported by a vast 81 percent of adults younger than 30, compared with just 44 percent of seniors.").
251. Clyde Wilcox et al., supra note 47, at 237.
252. Klarman, Closet to Alta r, supra note 20, at 200.
253. see also Silver, supra note 162 ("[I]t's the steadiness of the trend that makes same-sex marriage virtually unique among all major public policy issues.").
254. See Silver, supra note 162.
255. See supra pp. 132-33.
256. Trevor Butterworth, Revenge of the Nerd: Nate Silver Is 2012's Other Winner, Daily Beast (Nov. 7, 2012, 11:09 AM), http://www.thedailybeast.com/articles/2012/11/07/revenge-of-the-nerd-nate-silver-is-2012-s-other-winner.html (calling Silver one of the "two big winners in the presidential election).
257. Nate Silver, Will Iowans Uphold Gay Marriage?, FiveThirtyEight (Apr. 3, 2009, 7:18 PM), http://www.fivethirtyeight.com/2009/04/will-iowans-uphold-gay-marriage.html
258. Nate Silver, Analysis: Gay Marriage Ban is Underdog in Maine, FiveThirtyEight (Oct. 1, 2009, 6:05 AM), http://www.fivethirtyeight.com/2009/10/analysis-gay-marriage-ban-is-underdog.html
259. Nate Silver, The Future of Same-Sex Marriage Ballot Measures, N.Y. Times (June 29, 2011, 10:35 AM), http://fivethirtyeight.blogs.nytimes.com/2011/06/29/the-future-of-same-sex-marriage-ballot-measures.
260. Silver, supra note 162.
261. Silver, Will Iowans Uphold Gay Marriage?, supra note 214.
262. Patrick J. Egan & Nathaniel Persily, Court Decisions and Trends in Support for Same-Sex Marriage, Polling Report, Aug. 17, 2009, available at www.pollingreport.com/penp0908.htm.
263. In Gay Marriage Debate, Both Supporters and Opponents See Legal Recognition as 'Inevitable,' Pew Research Ctr. (June 6, 2013), http://www.people-press.org/2013/06/06/in-gay-marriage-debate-both-supporters-and-opponents-see-legal-recognition-as-inevitable.
264. David Gibson, Public Support for Gay Marriage on Verge of Surpassing Opposition, Pol. Daily (Mar. 5, 2011), www.politicsdaily.com/2011/03/05/public-support-for-gay-marriage-on-verge-of-surpassing-oppositio (quoting Albert Mohler) (internal quotation marks omitted).
265. Quoting Albert Mohler (internal quotation marks omitted).
266. See Goss v. Bd. of Educ., 373 U.S. 683, 689 (1963).
267. Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 225 (1964).
268. See Green v. Cnty. Sch. Bd., 391 U.S. 430, 437-38 (1968).
269. See, e.g., Bell v. Maryland, 378 U.S. 226, 228-29 (1964) (vacating a state-court decision af firming the trespass convictions of sit-in demonstrators and remanding to the state court to de termine whether a newly enacted state public accommodations law applied retroactively).
270. See NAACP v. Button, 371 U.S. 415 (1963).
271. See, e.g., Reitman v. Mulkey, 387 U.S. 369, 380-81 (1967).
272. See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).
273. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966). On the notion that the Warren Court's criminal procedure decisions should be seen as a function of its solicitude for the rights of racial minorities.
274. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, 764-66 (1991)
275. William J. Stuntz, The Collapse of American Criminal Justice 216 (2011)
276. Noting that the expanded criminal procedure rights protected by the Warren Court "were supposed to guard defendants against the kind of politics that victimized the poor and blacks while guarding the interests of middle- and upper-class whites".
277. Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting) (noting that the majority's "disclaim er" that its ruling does not decide whether states are constitutionally free to reject same-sex mar riage is "a logical and necessary consequence of the argument the majority has chosen to adopt").
278. Scalia, J., dissenting ("[I]t is just a matter of listening and waiting for the other shoe."); (noting the majority's "pretense that today's prohibition of laws ex cluding same-sex marriage is confined to the Federal Government"); (arguing that the view that the Supreme Court will take of state prohibitions on same-sex marriage "is indicated beyond mistaking by today's opinion").
279. Noting that DOMA "humiliates tens of thousands of children now being raised by same-sex couples".
280. Scalia, J., dissenting (stating that the majority's assurance that the decision does not resolve the issue of whether states must permit same-sex marriages "takes real cheek," given that it was preceded by "a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it").
281. For some leading exemplars, see Troxel v. Granville, 530 U.S. 57 (2000) (parental rights); United States v. Virginia, 518 U.S. 515 (1996) (sex-based exclusion from public universities); Romer v. Evans, 517 U.S. 620 (1996) (state constitutional prohibition on gay-rights ordinances); Plyler v. Doe, 457 U.S. 202 (1982) (right of children of illegal aliens to free public education); Coker v. Georgia, 433 U.S. 584 (1977) (proportionality review with regard to the death penalty); Moore v. City of East Cleveland, 431 U.S. 494 (1977) (right to live with family members beyond the nuclear family); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) (poll tax); Griswold v. Connecticut, 381 U.S. 479 (1965) (right of married couples to use contraceptives); Brown v. Mississippi, 297 U.S. 278 (1936) (use of confessions extracted through torture); Nixon v. Herndon, 273 U.S. 536 (1927) (state-imposed white primary).
282. Indeed, it is surprising how often the Court's formal doctrine explicitly contemplates counting the number of states that employ a certain practice in determining whether the Constitution requires it.
283. Corinna Barrett Lain, The Unexceptionalism of "Evolving Standards," 57 UCLA L. Rev. 365 (2009).
284. See Graham v. Florida, 130 S. Ct. 2011 (2010) (life without possibility of parole for juveniles committing nonhomicide offenses); Roper v. Simmons, 543 U.S. 551 (2005) (death penalty for ju veniles); Lawrence v. Texas, 539 U.S. 558 (2003) (criminal punishment for private same-sex sexual relations between consenting adults); Atkins v. Virginia, 536 U.S. 304 (2002) (death penalty for the intellectually disabled).
285. Silver, supra note 162.
286. See Powe, supra note 102, at 490 ("[T]he dominant motif of the Warren Court is an assault on the South as a unique legal and cultural region."); see also Windsor, 133 S. Ct. at 2707 (Scalia, J., dissenting) (noting that the "once-Confederate Southern state[s]" have been "familiar objects of the Court's scorn").
287. Scalia Misquoted on Brown v. Board of Education, Huffington Post (May 25, 2011, 3:30 PM), http://www.huffingtonpost.com/2009/10/27/scalia-on-brown-v-board-o_n_335591.html (correcting an earlier incorrect report).
288. Nina Totenberg, Justice Scalia Disputes Accuracy of 'Leak,' NPR (July 25, 2012, 4:44 AM), http://www.npr.org/2012/07/25/157319766/justice-scalia -disputes-accuracy-of-leak.
289. See supra note 97 and accompanying text.
290. See supra notes 122-123 and accompanying text.
291. 381 U.S. 479 (1965).
292. See Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 100th Cong. 116 (1987) (statement of Judge Robert H. Bork) ("[T]he right of privacy, as defined or undefined by Justice Douglas, was a free-floating right that was not derived in a principled fashion from constitutional materials.").
293. Ethan Bronner, Battle for Justice 74-75 (1989)
294. Noting how Bork's 1971 arti cle in the Indiana Law Journal, which included harsh criticism of Griswold, "became Exhibit 2 in the burying of Robert Bork"); (describing how Senators Joseph Biden and Ted Kennedy bludgeoned Bork over his past criticisms of Griswold and the constitutional right to privacy).
295. See Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Jus tice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 318, 441 (2006) (statements of Judge Samuel A. Alito, Jr.) (acknowledging the consti tutional right to privacy); Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 146-47, 186 (2005) (statements of Judge John G. Roberts, Jr.) (same).
296. Mackenzie Weinger, Conservative Pundits Split over Gay Marriage, Politico (Mar. 27, 2013, 2:54 PM), http://www.politico.com/story/2013/03/gay-marriage-conservative-pundits-split-89382.html (noting that some conservative pundits are now supporting gay marriage because they believe "the shift toward accepting gay marriage seems inevitable and the conservative party must adjust along with popular opinion").
297. Indeed, some conservative opponents of gay marriage have shown a sensitivity to accusations of bigotry. See Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting) (objecting that to vindicate the constitutional challenge to DOMA is to "cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools"); Windsor Transcript, supra note 63, at 91 (Roberts, C.J.) (expressing incredulity that the 84 senators who voted for DOMA and the President who signed it were "motivated by animus"); Brief on the Merits for Respondent BLAG, supra note 115, at 22 (noting that one of the virtues of democratic decisionmaking is that it puts "a premium on persuading opponents, rather than labeling them as bigots motivated by animus").
298. David A. Strauss, The Modernizing Mission of Judicial Review, 76 U. Chi. L. Rev. 859 (2009) (explaining how broad swathes of constitutional doctrine illustrate the Court's "[m]odernizing [m]ission" to align constitutional law with shifting public opinion).