Ok, I accept that.
I’m trying to put my mental finger on why I was so convinced that the answers would come out differently, and I think there are a couple of pieces of evidence that nudged me towards that conclusion.
One is the general acceptance of California’s approach on Prop 8 – they refused to defend it. So I guess I could tweak the Romney/Dean hypo as I started to ask a couple of pages ago: what if the issue were President Romney’s defense of the Mandatory School Voucher and Legal Citation Education Program of 2019?
In your hypo, the Court has already blessed it. But what if we explore this question – the law gets challenged, Romney’s administration defends it, and then Dean’s administration comes into power and stops defending it in court?