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The Majoritarian Difficulty

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Perhaps I’m missing something, but my impression is that we’ve seen a little less of the backlash argument in response to Windsor than usual. Even from the right, invocations of the public rising up against judicial tyranny seem to be more hope than prediction. But it’s still worth remembering that the argument that policy changes achieved through the courts produce more backlash has never been supported by any empirical evidence, and Windsor is another case in point:

Naturally, after the Supreme Court’s momentous rulings on DOMA and Prop 8, USA Today sponsored a poll gauging the country’s opinion on the subject. The results show that public support for gay marriage post-Windsor is almost exactly where it was before the Supreme Court ruled parts of DOMA unconstitutional. The fact that nine unelected old people dressed in robes made this decision made no discernible difference. Heck, given that the Presidency has been polarized for decades and Congress is slightly more popular than an intrusion of cockroaches, having a fairly popular institution arrive at the “final” outcome is probably a plus, not a minus.

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