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.
What do I mean by that? Well, consider the Judicial Wars. Of course, different people will have different dates for the start of that long conflict, but there’s a plausible argument that it began 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.
There has been a long-running argument about whether public opinion on abortion would have continued to liberalize after Roe v. Wade, rather than hardening into a remarkably stable equilibrium.
I tend to think that it would have, because Roe turned what had been a local political battle into a national one, and thereby galvanized social conservatives in (future) red states who would have otherwise 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 (along with other conservative priorities), 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.
But 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 first-degree 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:
One extensive battery of survey questions asked since the early 1970s shows that people support abortion when the circumstances of the pregnancy are out of a woman's control (she has been raped, the life of the mother is at stake), but they oppose it when she can control the circumstances (she is married and doesn't want more kids, she is not married and doesn't want to marry the father).
A normal legislative process would have to actually 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 exempted abortion from the legislative process, it also exempted political figures -- and voters -- from having to actually think through what abortion law should look like. The legislative action moved to secondary and tertiary and quaternary issues: spousal and parental notification, health code standards for clinics, whether the federal government should give any funding to organizations that performed abortions, even if the money was tied to some other activity the government wanted to promote.
When a court has precluded 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 that followed. The pro-choice side, meanwhile, might discover that blue states weren’t quite as blue as they’d fancied, when legislators could no longer justify later-term abortions on the grounds that the Supreme Court had left them no choice.
You can see where I’m going with this: 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 necessary to override a presidential 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 nominee gotten the nod, they might have put in that work over the last year, 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, probably supplemented with wildly unlikely claims for a public option or single-payer system.
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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