Will Baude blogged that the NJ Supreme Court’s opinion denying the stay telegraphed what they would do on the merits. Governor Christie (I’m sure he read Volokh) saw it the same way, and dropped his appeal. This, in effect, brings officially brings SSM to Jersey without a ruling on the merits by the court of last resort. This is somewhat similar to what happened in California with Perry v. Brown (it was tossed due to a lack of standing). This may also happen in New Mexico, as no one wants to appeal trial court decisions permitting same-sex marriage. Same for the AG of Pennsylvania, but not the Governor who has appealed. This seems to be something of a pattern.
Christie’s comments, which I’m sure were carefully worded, are quite interesting:
“Although the governor strongly disagrees with the court substituting its judgment for the constitutional process of the elected branches or a vote of the people, the court has now spoken clearly as to their view of the New Jersey Constitution and, therefore, same-sex marriage is the law,” Mr. Christie’s administration said in a statement. “The governor will do his constitutional duty and ensure his administration enforces the law as dictated by the New Jersey Supreme Court.”
I don’t remember the last time I saw the phrase “dictated” use in the context of a court opinion.
Update: Will Baude has similar thoughts:
I’ve seen some criticism from the right of Governor Christie’s conduct. But this isn’t quite like when executives in other states have declined to appeal trial court rulings against them. As I explained Friday, the New Jersey Supreme Court’s ruling made quite clear how it was going to decide the case (a little hastily, it seems to me, but it’s their prerogative). And the ruling appears to have been based on state law, so there would have been no basis for involving the Supreme Court. Under those circumstances, it seems reasonable for Christie to conclude that any further challenges would be pointless — even if we assume that he actually wanted to win the litigation.