A few initial thoughts on Windsor (and Massachusetts v. EPA)

Today's blockbuster isn't an environmental case.  But as I read through the Court's opinion, I found myself thinking of Massachusetts v. EPA.  Both cases, on their face, turn on the application of a federal constitutional principle.  Each case also involved a principle that we traditionally interpret and apply without much reference to ideas of federalism.  Both standing (Massachusetts v. EPA) and, to an even greater extent, equal protection (Windsor) have affected relationships between the federal government and the states.  But (and more knowledgeable constitutional lawyers may correct me on this) I don't think there was a long tradition of letting the involvement of states drive the standing analysis, or (outside of the states' role in defining property rights) letting the political enactments of states determine the level of federal constitutional protection for asserted individual rights.

Nevertheless, in Massachusetts v. EPA, the Court attributed "considerable relevance" to the state status of the plaintiff.  And today's opinion repeatedly emphasizes the protection some states--including New York, where Edith Windsor and Thea Spyer lived--have chosen to accord to same-sex marriages.  In both opinions, it is far from clear exactly how the gloss of federalism changes the constitutional analysis; it matters, but we don't know exactly how.  And in both cases, dissents, though otherwise (in my view) spouting a fair bit of nonsense, pointedly criticized this ambiguity.

So what's going on?  Or, more narrowly, what is Justice Kennedy up to (he didn't write the Massachusetts v. EPA opinion, but he did raise the state-plaintiff point at oral argument, and it seems fairly likely that Justice Stevens' opinion was written in large part to appeal to Justice Kennedy's concerns)?  It seems that Justice Kennedy would very much like to give legislative pronouncements a greater voice in constitutional interpretation, even where the interpretive questions involve matters like the scope of individual rights or the jurisdiction of the courts.  That's not a new idea; many people have argued that a dialogue between the courts, legislatures, and the general public does and should shape constitutional law.  But I think Justice Kennedy would like to go one step further, and establish a special place for the states in this constitutional dialogue.  He doesn't seem to have figured out how to ground that notion in past precedent, or to articulate language that would turn his constitutional intuition into a set of doctrinal principles applicable in future cases.  Hence the ambiguous and somewhat puzzling opinions (or, in Massachusetts v. EPA, passage of an opinion).  But the intuition nevertheless seems to drive results.

Today, those results are really, really good.  And I think Massachusetts v. EPA was a pretty wonderful outcome as well.  But it's interesting to ponder where else this half-emerged vision of constitutional law would take us.

-Dave