Tara Helfman (Syracuse University - College of Law) has posted U.S. v. Windsor and the Judicial Politics of the Roberts Court (Syracuse Journal of Law and Civic Engagement, Forthcoming) on SSRN. Here is the abstract:
This article examines the political implications of the Executive’s nondefense of the Defense of Marriage Act (DOMA), along with the long-term constitutional implications of the Supreme Court’s ruling in United States v. Windsor. Part I offers a critical assessment of the Windsor case, arguing that the majority overreached with respect to jurisdiction and underperformed with respect to the protection of gay rights. Part II considers the propriety of the Executive’s non-defense of DOMA, arguing that the Executive’s defend-but-do-not-enforce posture was deeply problematic. Part III considers Windsor in the context of Chief Justice Roberts’s leadership of the Court, exploring the implications of the case for the future role of the Supreme Court in the national debate on gay rights.
