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98 Minn. L. Rev. Headnotes 1 (2013)

handle is hein.journals/headnotpan98 and id is 1 raw text is: Essay

When Too Little Is Too Much: Why the
Supreme Court Should Either Explain Its
Opinions or Keep Them to Itself
Jonah J. Horwitz'
In 1972, the Supreme Court released what appears on its
face to be one of the simplest opinions in its history. That deci-
sion, Baker v. Nelson,' read, in its entirety: The appeal is dis-
missed for want of a substantial federal question. That's it.
Eleven straightforward words. But, as is often the case in the
law, great complexity lurks under the surface, for this terse or-
der has been cited by no fewer than sixty-two judicial opinions
and 314 secondary sources. Even more amazingly, Baker has
come to assume a prominent place in the debate over gay mar-
riage, one of the most controversial legal battles of our era. This
is so because the decision by the Minnesota Supreme Court un-
der review in that case held that same sex marriage was not
protected by the Constitution.2 Consequently, the U.S. Su-
preme Court's cursory order could be read as an acknowledg-
ment that bans on same sex marriage are constitutionally per-
missible.' For these reasons, the order is discussed at length in
the Second Circuit's opinion in Windsor v. United States, the
vehicle for the Supreme Court's landmark judgment on the De-
fense of Marriage Act.5
t BA with honors, 2006, Swarthmore College. JD cum laude, Order of
the Coif, 2010, Northwestern University School of Law. The author is current-
ly clerking for a judge on the United States Court of Appeals. He can be con-
tacted at horwitz.jonah@gmail.com. Copyright @ 2013 by Jonah J. Horwitz.
1. 409 U.S. 810 (1972).
2. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).
3. See, e.g., Massachusetts v. U.S. Dep't of Health & Human Servs., 682
F.3d 1, 8 (1st Cir. 2012) (summarizing that argument), cert. denied, No. 12-97,
2013 WL 3213571 (U.S. June 27, 2013).
4. 699 F.3d 169, 178-79 (2d Cir.), affd, 133 S. Ct. 2675 (2013).
5. Windsor, 133 S. Ct. 2675.


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