From Windsor to Brackeen

Scalia was right: "The only thing that will 'confine' the Court's holding is its sense of what it can get away with."

I started teaching in August of 2012. One month earlier, the Court decided NFIB v. Sebelius. And one month later, a cert petition was filed in United States v. Windsor. At the time, I and everyone else recognized that DOMA was doomed. The only question concerned on what grounds the Court would rule. Would it be the Due Process Clause or Equal Protection "component" of the Fifth Amendment? Or would Justice Kennedy adopt a federalism-based argument–perhaps along the lines of a brief submitted by several Volokh conspirators. Ultimately, Justice Kennedy did what he did best: sprinkle a bit of Due Process, grate some Equal Protection, add a pinch of dignity, let it simmer over a low flame of federalism, and voila–Liberty!

No one really cared about the reasoning. What mattered was the bottom line–love wins! And more importantly, Justice Kennedy gave a green light to every judge to strike down marriage laws. But one part of the majority opinion seems especially relevant for Brackeen. The Court discussed at some length why the federal government, historically, "has deferred to state-law policy decisions with respect to domestic relations." Indeed, the Court relied on this principle to show that the federal Defense of Marriage Act was unconstitutional.

One would think that Brackeen should have addressed Windsor. While DOMA merely defined marriage for purposes of federal law, leaving state laws intact, ICWA forces every state to enforce a federal domestic law. But Justice Barrett does not even cite Windsor. Look how quickly she cabins unhelpful precedent:

It is true that Congress lacks a general power over domestic relations, In re Burrus (1890), and, as a result, responsibility for regulating marriage and child custody remains primarily with the States, Sosna v. Iowa (1975). See also Moore v. Sims (1979). But the Constitution does not erect a firewall around family law.

Barrett cites several cases in which federal law pre-empts state family laws. But none of these cases comes even remotely close to what ICWA does. We aren't merely talking about preemption–ICWA dictates, even commandeers, states to award custody of children to tribal members. There is no precedent on point. Rather than cabining non-originalist precedent, Justice Barrett–as well as the other two Trump appointees–quietly extends federal power without any hesitation. And she drags James Madison into this sordid business:

Petitioners are trying to turn a general observation (that Congress's Article I powers rarely touch state family law) into a constitutional carveout (that family law is wholly exempt from federal regulation). That argument is a nonstarter. As James Madison said to Members of the First Congress, when the Constitution conferred a power on Congress, "they might exercise it, although it should interfere with the laws, or even the Constitution of the States." 2 Annals of Cong. 1897 (1791). Family law is no exception.

Justice Alito, in dissent, does cite Windsor, and calls out how unprecedented this holding is:

As the majority observes, we have held that federal legislation that regulates certain "economic aspects of domestic relations" can preempt conflicting state law. . . . But we have never held that Congress under any of its enumerated powers may regulate the very nature of those relations or dictate their creation, dissolution, or modification. Nor could we and remain faithful to our founding. "No one denies that the States, at the time of the adoption of the Constitution, possessed full power over" ordinary family relations; and "the Constitution delegated no authority to the Government of the United States" in this area. Haddock v. Haddock (1906). It is a "most important aspect of our federalism" that "the domestic relations of husband and wife"—and parent and child—are "matters reserved to the States and do not belong to the United States." Williams v. North Carolina (1945).

In Brackeen, Justice Barrett has a heads-I-win-tails-you-lose approach to stare decisis. When the petitioners failed to fully consider every conceivable precedent, they failed to meet their burden. When petitioners identified that precedent does not support the respondents' case, they still failed to meet their burden because the Court set a new precedent.

Justice Scalia in Windsor was right, as always: "The only thing that will 'confine' the Court's holding is its sense of what it can get away with."