This Article examines President Donald Trump’s recent recomposition of the United States Supreme Court and the potential effects on Windsor v. United States and its progeny. The Article considers whether the shifting balance of the Court may lead to reconsideration of Windsor, particularly via attempted exploits of the weaknesses in the standard of review applied to reach the decision. The Article will conclude that while revolutionary, Windsor lacked the doctrinal clarity of its offspring, Obergefell v. Hodges, and therefore may be at greatest risk of reversal by the increasingly conservative Court. In particular, the Court may rely on the conflict between Windsor and preceding jurisprudence regarding the rational basis review standard to draw the conclusion that Windsor should have been decided differently under the state of the law in 2013.
Artem M. Joukov,
A Second Opinion: Can Windsor v. United States Survive President Trump’s Supreme Court?,
27 J. L. & Pol'y
Available at: https://brooklynworks.brooklaw.edu/jlp/vol27/iss2/1