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Nowhere is the majority’s extravagant conception of
judicial supremacy more evident than in its description—
and dismissal—of the public debate regarding same-sex
marriage. Yes, the majority concedes, on one side are
thousands of years of human history in every society
known to have populated the planet. But on the other
side, there has been “extensive litigation,” “many thoughtful
District Court decisions,” “countless studies, papers,
books, and other popular and scholarly writings,” and
“more than 100” amicus briefs in these cases alone. Ante,
at 9, 10, 23. What would be the point of allowing the
democratic process to go on? It is high time for the Court
to decide the meaning of marriage, based on five lawyers’
“better informed understanding” of “a liberty that remains
urgent in our own era.” Ante, at 19. The answer is surely
there in one of those amicus briefs or studies.
Those who founded our country would not recognize the
majority’s conception of the judicial role. They after all
risked their lives and fortunes for the precious right to
govern themselves. They would never have imagined
yielding that right on a question of social policy to unaccountable
and unelected judges. And they certainly would
not have been satisfied by a system empowering judges to
override policy judgments so long as they do so after “a
quite extensive discussion.”
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