And both sides have reason to pity themselves as the losers of the [political] system. Partisan Democrats, with some justification, feel that the constitutional system favors dirt (geography), so it rewards Republicans with too many senators and even electoral votes than they would otherwise win. Many partisan Republicans also feel that their votes go for naught, and that elites in the media, donor class, and social scene of Washington, D.C., constantly make Republicans under-deliver on their promises. The mass democratic character has also been seeping into other institutions, with federal courts issuing boldly partisan decisions whose logic would embarrass them if their partisan character didn’t overwhelm all other considerations.
The Supreme Court’s role in this scene, with Kennedy as the swing justice, has been to moderate and restrain the ambitions of each party. Kennedy deals out victories and defeats to each side — giving slightly more defeats to social conservatives. In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.
So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself. A non-swinging Supreme Court would give the impression of super-charging the ability of one party to act, and restraining its competitor. A consolidated Supreme Court could open up whole new fields of legislation for one side to act against the other. At that point, what would happen?
We are going to find out.
Along those lines, this:
Courts are a bad vehicle for policymaking. Courts are a bad vehicle for policymaking. Courts are a bad vehicle for policymaking.
I tell you three times, and what I tell you three times is true.
— Megan McArdle (@asymmetricinfo) June 27, 2018
Third, I see that liberals are freaking out over the prospect that Roe could be overturned. I think they’re right to be worried, obviously, and us pro-lifers are right to be excited. But let’s not get ahead of ourselves. Overturning Roe would only mean that regulating abortion returns to the states. If you live in a socially liberal state now, you don’t have anything to worry about. That’s not going to make you happy, but it’s not Armageddon. And there is no realistic chance that Obergefell will be overturned. But even if it were, again, that only means that the gay marriage question devolves to the states. Gay marriage is overwhelmingly popular. There might be a handful of Southern states (plus Utah) that might vote against it, in a popular referendum. But even they would fall eventually. Same-sex marriage isn’t an issue for younger voters, who support it by a wide margin.
Anyway, take a look at this point:
Kennedy retiring is where the Roy Moore own goal really, really hurts. We now only have 51 votes, but two of those are Murkowski and Susan Collins, who will likely be reluctant to support a 5th pro-life justice. Mitch will have to put the screws on to get to 50.
— James Hasson (@JamesHasson20) June 27, 2018
For all that, this is a great day for conservatives. Following Michael Brendan Dougherty, though, I’m not at all sure it’s a great day for America’s future. However, had Hillary Clinton won, conservatives would be in the same miserable position today as liberals are.
It is not at all healthy for the republic that the Supreme Court matters so much. But we are where we are.