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Serious Disagreement: Same-Sex Marriage, Judicial Review, And The Quality Of Debate, Rob Goodman

Rob Goodman

Both defenders and critics of strong judicial review have relied on claims about the quality of debate in courts: the former, such as Ronald Dworkin, have characterized it as more principled than legislative debate, while the later, such as Jeremy Waldron, have called it overly-focused on text and precedent, to the detriment of substantive moral argument. The question can and should be studied empirically. To begin to do so, I compare American legislative and judicial debates, on the federal and state levels, on same-sex marriage. While legislatures and courts often heard similar arguments, the marriage debate in the courts took …