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The Majoritarian Difficulty


A Republican governor up for re-election chooses not to appeal a ruling requiring the state to recognize same-sex marriages. What does that tell you?* Excellent news in any case.

Adam Serwer has an excellent piece about how judges, aware of the historic impact of the rulings, seem conscious about inserting memorable phrases. One might call this “Anthony Kennedying,” although most of these judges seem to do it better.

*Not understanding the message is Patterico:

Before you have a chance to blink, this will be the whole country. We’ll have none of this acceptance by society nonsense. Just cram it down the people’s throats through phony trumped-up legal doctrine. That’s the ticket.

Um, sorry, but acceptance by society is in fact here. I’m also afraid I’m going to require more explanation about why an application of basic equal protection law is a “phony trumped-up legal doctine,” particularly from people who suddenly discovered after the passage of the Affordable Care Act that McCulloch v. Maryland didn’t mean what everyone has assumed it’s meant for nearly 200 years.

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