Be Careful What You Ask For

In “Obamacare, Abortion and the Ease of Extremism,” Megan McArdle discusses “how much easier it is to hold radical opinions when you have no hope of passing legislation.” She makes a powerful if familiar argument that much of our current extreme partisanship “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.”

… 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.

…. A normal legislative process would have to actually address this complex set of opinions head-on…. 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…. When a court has precluded making actual policy, talk is cheap and extreme opinions abound

Roe energized conservatives, nationalized what had been a state and local issue, and, more importantly, converted political struggles into an all-out war to control the courts.

McArdle doesn’t discuss immigration, but she well could have. I don’t normally waste time by attempting to give Democrats advice, but I’ll make an exception now: Pause for a moment and consider the effect — the political effect, if nothing else — if you succeed in enlisting the courts to block the president from imposing reasonable, temporary immigration restrictions based on national origin. It may make the response to Roe seem mild and the Tea Party response to Obamacare seem like, well, a tea party.


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