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Boston University School of Law




Heather Gerken comes to praise Justice Kennedy’s opinion for the Supreme Court in United States v. Windsor. 1 I come to praise Gerken’s valiant effort to recast the Windsor opinion along more convincing lines.2 Gerken does not propose a wholesale substitute for Justice Kennedy’s analysis. She suggests a shift in emphasis that lends Kennedy’s explanation for condemning DOMA a surprising jurisprudential significance. Where some us have seen yet another lamentable paean to the sovereignty of the states, Gerken detects the faint hint of the “nationalist” school of federalism that she and others have nurtured in recent years.3 Gerken does not (yet) attach relevant significance to Justice Kennedy’s predicate holding that Windsor presented the question of DOMA’s validity in a justiciable posture. I want to contend that there, too, Kennedy may have recognized (implicitly and even more faintly) that the values we should associate with federal structure are not well served by sovereignty-based allocations of power.



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