Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.The only way out of our nasty politics, he thinks, is to overrule Roe v. Wade:
[T]he entire country is trapped. Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can't stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better.But it's not possible to redo the last 30 years. We already are where we are, and those who think abortion should be legal have spent these decades -- or their whole lives -- thinking abortion was not only legal but a constitutional right. To take that right away now would not give us a chance to have the democratic debate we never had. It would be a wholly different experience of taking away a right, after the bitter politics had built to the level where the side opposed to the right has finally gotten its way, after we have already become polarized. What makes you think that won't be insanely bitter?
True, it will be democratic -- though the pro-abortion-rights side won't give up on fighting in the courts -- but it won't be the same democratic debate we might have had back in the early 1970s. Ironically, if, after all these years, social conservatives finally gain a majority on the Supreme Court that is willing to overturn the precedent, it will activate political liberals and libertarians. And one thing they will want is their majority back on the Supreme Court.
I think David Brooks, like most of those who push for radical change, is indulging himself, painting a rosy picture of life post-change.
UPDATE: Ramesh Ponnuru at The Corner tries to rehabilitate Brooks after my attack. Ponnuru assumes the debate would return to the states, which is a subject I took up in the comments. I wrote:
[T]he Supreme Court can't ensure that if it overruled Roe v. Wade, the matter would be determined at the state level. With a new political field opened up, Congress would want to do things too. Unless the Court also did something awfully strong to limit the Commerce Power, Congress would have the power to regulate abortion, including making it a federal crime. I can't imagine that it wouldn't try!
ANOTHER UPDATE: Ponnuru does acknowledge the potential for federal action here:
[I]f Roe ended, pro-choice activation would, I think, not likely be matched by pro-life quiescence. There would be too many state (and federal) legislative battles to fight, and nobody on the pro-life side would think their work done.
He goes on to say:
In a lot of places, you'd have state laws that restricted abortion a lot more than it is restricted today, but not as much as pro-lifers (like me) would like. So hard-core partisans on both sides would be unhappy. ... Public policy on abortion would be closer to median-voter sentiment. And the sense of the law's illegitimacy would be much harder for the losing side of any battle to maintain (as Brooks points out).I do think this prediction of moderation, with the hardcore ends of the spectrum unhappy envisions decentralized politics rather than a sudden grab for everything in Congress in a very bitter, unsettling fight. Why wouldn't the groups on both sides converge on Congress and demand everything they want? How could Congress ignore that? If the Terri Schiavo case is any indication, Congress will plunge forward and take over this area.
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Very true Gerry... I'm one of those small-l libertarians. Being a libertarian doesn't immediately make you pro-choice... Just like a lot of divisive issues, people fall on both sides of the fence. Just like there were libertarians who fell on both sides of the Iraq war debate.
I agree that a great deal of political haymaking would be part of the reaction to a Roe v Wade repeal, though it's hard to see a repeal on the horizon. But if Roe v Wade created a constitutional right, little is said about that right if Roe disappears. If the constitution is silent, the debate becomes more meaningful because the conclusion isn't foregone.
The fact that some people have become or have always felt entitled to abortion as a right shouldn't be relevant in the eyes of the court; they become truly relevant by having the chance to weigh in when this becomes a real states rights issue. You are right that it won't be the same debate we would have had in the 1970s, when leading pro-choice politicians such as Ted Kennedy, Jesse Jackson and Al Gore were all horrified at what the court had done.
Here's what I don't get -- other than the fact that one is universally popular *now* and the other isn't, why point to Roe and not Brown? Both were activist decisions impinging on state's rights, both inspired massive local resistance (Brown, even more), yet Brooks would rather go after Blackmun . . .
Actually Ann... I have a nother question...
If you agree that the overal premise of the Times article is correct, in so much as that Roe did cause this polarization because it took away from the democratic process...
And you are saying that reversing Roe won't create put the discussion back in the democractic sphere thus reversing at least some of the current polarization....
Are you then saying that we're completely screwed here? There's absolutely nothing to be done? I understand we can't go back 30 years... but I also don't like the idea that there are no solutions. Maybe it's the engineer in me... but I always like to think there's an out. Otherwise it's a pretty bleak picture you paint.
Nick: you could put the question back in the political sphere, but it won't be the same politics we would have had without Roe v. Wade. If the Court had never acted, that debate would have proceeded without reference to the courts and with people who wanted something new working to convince others to accept it. If the political debate were to take place now, it will be full of outrage at the court (from one side) and triumph that the project of taking over the court succeeded (from the other). There will be shock at the loss of a right from many people, who will also be suddenly aghast at all the progress made by social conservatives. This will be a very different debate. You're just not thinking clearly if you imagine it won't be bitter and polarized. I think this is one of the reasons the Court has declined to overrule Roe.
Twren: Even if it was radical to do what it did when it found the right of privacy, undoing it now would also be radical. You can't go back to the past and start over. That's my point.
Lindsey: the Supreme Court can't ensure that if it overruled Roe v. Wade, the matter would be determined at the state level. With a new political field opened up, Congress would want to do things too. Unless the Court also did something awfully strong to limit the Commerce Power, Congress would have the power to regulate abortion, including making it a federal crime. I can't imagine that it wouldn't try!
Lindsey: The Court doesn't just give orders. It would have to be interpreting some law. What law would keep Congress out of the matter?
lindsey said, re my comparison of Brown to Roe:
No one questions the morality of desegregation because it was manifestly immoral. Abortion is a whole other ball of wax. It involves the taking of a life. This is why the issue is so contentious. This should be obvious. There's more than states' rights issues involved in this.
"No one" questioned it other than the fact that the Brown decision led to a seismic shift in American politics, from a Solid South where Republicans won not one state in 1948 (despite Dewey-Warren winning 45% of the national vote) to a Solid South where Democrats were shut out in 2000 and 2004. I believe the aftershocks of Brown were pretty damn contentious from 1954 to the 1960s to the busing fights of the 1970s and beyond.
My point, simply, is this: the kind of judicial activism Brooks decries happens in "good" cases too, and leads to similar anti-judicial sentiment. The "Impeach Earl Warren" was pretty significant, and for Brooks to only blame Roe is to make an historically false argument.
I understand that you're saying it would be bitter and decisive if it were over turned. But if we say that the current situation is a problem, and that Brook's solution wouldn't work... than what's yours? Or are you saying that there is no solution and we're just screwed? I guess that was my real question.
Nick: I don't think there will ever be a satisfying solution to the abortion controversy. The beliefs are too deeply divergent. Letting each woman choose, since the matter in question is happening inside her body, is one resolutions, but clearly it is deeply unacceptable to others, who would like some democratic participation in the matter.
John: I'm not sure exactly what you're finding unpersuasive. Do you not agree with me that, if given an opening, members of Congress would want to legislate on the subject of abortion and would not all the states to work it out on a decentralized level? If you're saying the Court ought to withdraw the right as a demonstration of their commitment to federalism: 1. If Congress would take over, there wouldn't be much left for the states, and 2. Even for people who care about federalism and want to see more things left to the states, individual rights still come first. It's not a betrayal of federalism values to respect the supremacy of rights, though ideas about federalism may influence opinions about the scope of rights.
James Taranto in WSJ's Opinion Journal has made the point that Republicans gain political leverage so long as Roe remains the law--Democrats have been forced to defend extremist positions that a great majority of people find indefensible (even many who support choice). Republicans won't ever want to surrender this weapon, it's too effective at marginalizeing Democrats. So Roe will never be fundamentally overturned, there's no actual constituency for that among politicans. The solution, if any, lies elsewhere.
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