Judicial Review and Strangeness
One theme that connects Windsor and Shelby County is judicial action was justified, in part, because the statute in question was unusual. The Chief Justice’s opinion striking down Section 4 of the Voting Rights Act repeated ad nauseum that preclearance was an extraordinary remedy at odds with traditional constitutional principles. Justice Kennedy, meanwhile, stressed that the Defense of Marriage Act was unique in its deviation from the practice using state law to define marriage.
This idea is not just limited to these two cases. Much of the argument against the individual health insurance mandate, as Josh Blackman discusses in his forthcoming book, came down to the fact that it was unprecedented. Romer is another example where the Justices emphasized the strangeness of the law before them to explain why it could not stand. (I’m going to think about other examples–Schechter Poultry and the National Industrial Recovery Act is an older one.)
Setting aside arguments about whether these statutes really were unusual, I’m wondering whether this concern constitutes an independent theory of heightened scrutiny (alongside originalism, Thayer’s idea of a “clear mistake,” representation-reinforcement, and so on) More on this in subsequent posts.