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A Busy SCOTUS Week

Anybody even remember King v Burwell? Probably not. But if you are one of the few who still care, my thoughts on the decision – which I very much agreed with – can be found over at The Week. Most of the piece talks about how King v. Burwell was properly deferential, and why that […]

Anybody even remember King v Burwell? Probably not. But if you are one of the few who still care, my thoughts on the decision – which I very much agreed with – can be found over at The Week.

Most of the piece talks about how King v. Burwell was properly deferential, and why that matters. A couple of paragraphs stand out, though, for having broader applicability.

The difficulty with having the Supreme Court strike down legislation produced by a democratically elected majority cannot be answered by reference to the sanctity of the Constitution. (After all, all branches of government are guided by this document, which, by the way, does not enumerate among the court’s powers the right to strike down legislation.) Nor can it be answered by reference to some hermeneutical rule (originalism, or strict construction, or anything else) that places the court above suspicion — because suspicion is, itself, a social and political matter, not a matter of objective fact.

Rather, the counter-majoritarian difficulty can only be answered pragmatically, by reference to the proper functioning of the government. There are a variety of possible such defenses, some more conservative (e.g., Madison’s defense of the separation of powers) and some more liberal (such as John Hart Ely’s hermeneutic of democratic inclusion). But they all boil down to this: We want the government to work this way and that requires that we have a court that plays this role.

So what about today’s decision declaring that the Constitution requires all 50 states to issue marriage licenses to same-sex couples? Is there any answer to the counter-majoritarian difficulty here?

I’m going to read the decision before opining.

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