As Republicans struggle to find a way to repeal and replace Obamacare, and liberals and conservatives gear up for a battle over Supreme Court nominee Neil Gorsuch, it strikes me that the same lesson can be drawn from both phenomena: how much easier it is to hold radical opinions when you have no hope of passing legislation.
Consider the Judicial Wars, which I believe started with the sweeping decision in Roe v. Wade. At a stroke, the Supreme Court cut down all the nation’s abortion laws, and took the question out of the political process.
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I believe that public opinion on abortion would have continued to liberalize without Roe v. Wade, rather than hardening into a remarkably stable equilibrium. Instead, Roe turned what had been a local political battle into a national one, thereby galvanizing social conservatives who otherwise would have been content not to think much about the issue. And starting in the 1980s, when conservatives began a concerted effort to make the judiciary more friendly to laws restricting abortion, it similarly galvanized people on the left who otherwise would not have invested a considerable portion of their political identity in the question of abortion.
Perhaps more importantly, Roe made the issue binary. Most Americans do not believe that abortions should be legal right up until the moment the doctor hands the baby to Mom and says “It’s a girl”; conversely, most Americans do not actually believe that every abortion is murder for which woman and doctor should be jailed. About a quarter believe that it should be legal under all circumstances, with few-to-no restrictions; another fifth believe that it should be legal under few to none. The middle is mushier.
A normal legislative process would have to address this complex set of opinions head-on. We’d probably have ended up with some sort of European-style compromise, much less contentious abortion politics and, quite possibly, much less obsession on either side with getting control of the Supreme Court.
But when the Supreme Court removed abortion from the legislative process, it exempted everyone from having to think through what abortion law should look like. The debate moved to secondary and tertiary issues: spousal and parental notification, health code standards for clinics, federal funding of organizations that perform abortions, even if the money was tied to some other activity the government wanted to promote.
When a court has precluded the government from making actual policy, talk is cheap, and extreme opinions abound. Placing the question of abortion beyond normal politics allowed voters and politicians to declare themselves to be for “life” or “choice” while rarely thinking hard about which choices should be made about which lives, and by whom. If conservatives got their wish and saw Roe struck down tomorrow, they would probably be surprised by how painful and unsatisfying they’d find the legislative process. The pro-choice side, meanwhile, might discover that blue states weren’t quite as blue as they’d fancied.
Repealing Obamacare was another cheap opinion, easy to hold because it wasn’t going to happen. As long as Democrats held the presidency (and Republicans did not have the two-thirds majority in the Senate to override a veto), conservatives could favor full repeal without meditating on the havoc that actual repeal would wreak in the insurance market. Nor did they need to do the long, hard work that the left had put in, thinking about what they wanted the insurance market to look like. Oh, there were wonks and a few legislators who had plans. But the Republican Party as a whole didn’t even really have a consensus on what role the government should play in ensuring that people had health insurance, much less what specific policies should support that role.
Had a more normal presidential nominee gotten the nod, they might have put in that work , in anticipation of a Republican administration. Instead they got Trump, and a “November Surprise” that found them completely unprepared to actually do what they’d been promising for the better part of eight years.
Now Democrats get to be the ones holding the cheap opinions about how fantastic Obamacare would be if Republicans hadn’t gone and wrecked it. That’s how American politics works now, because the old legislative system, designed to steadily grind out pork-stuffed bipartisan compromises that satisfied no one, has broken down. We now have a new system in which almost everyone is a passenger rather than a driver — and it’s much more fun for the passenger to offer backseat criticism of the driver than to read the map and try to work out how to get somewhere.
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