Sorry, we’re just going to have to agree to disagree, this early in the morning for me!
Sure. I’m not trying to be difficult. Maybe it just comes naturally, without effort! Sorry.
Cheers! Back to your regular doom and gloom reporting… (the opinion columns seem to be competing with one another right now. Salon, already kind of on the outs, is pretty much an angry forum shit post, which i guess is Salon’s new MO).
What I’d say is that the political system in the United States is not particularly responsive to the desires of the majority when the majority desires progress: a change in the status quo. Because of that it’s possible for entrenched minority status-quo-seeking interests to successfully impede progress toward policies that enjoy wide public support. The presence of this political possibility keeps those interests alive even when they’re swamped in culture at large. But our system is at least somewhat responsive to the desires of the majority, and in popular imagination it absolutely is. So you inevitably have two poles emerge: 1) the majority, which seeks to enact its desires through the popularly imagined normal process of government and 2) the status-quo-seeking minority, which seeks to enact its desires using the many non-democratic levers available in our system. The weird thing is that the minority clings to the popular conception of democratic governance for some reason and leverages an enormous amount of propaganda to maintain the fiction that their ideas enjoy wide support and that their methods are democratic. Maybe the idea of democratic governance is such a strong cultural value here that it’s impossible for them to abandon it, or maybe they see abandoning it as an ultimately losing gambit.
This is a reason why I don’t think that marriage equality is in danger. Support for it is spectacularly high in political terms — 70% overall and 55% among Republicans. It’s far easier for the Court to simply continue discriminating against LGBT people when it comes to other treatment under the law, along the lines of Masterpiece Cakeshop. Making a renewed issue out of marriage equality doesn’t really make sense, since they can accomplish what they want with other means of discrimination.
I don’t think this matters. What drives Republican politics now is what the far right wants. And they want gay marriage to be illegal, so candidates will promise it, and they will have the power to deliver.
You may be right; but the rabid right will be more than happy with an environment where you can be fired for being LGBT, or denied products or services on religious grounds for being LGBT — including e.g. housing. I note that there isn’t much of a movement to outlaw interracial marriage anymore, even though that was also a cause for which the right was at one time seemingly prepared to die.
I completely disagree. The rabid right will never be happy, because their identity is formed around being victims. They will always find a way to be victimized, and gay marriage is one of the big ones.
This isn’t what happened in the case of abortion, though is it. The side that lost that fight 50 years ago are simply replicating the tactics of the winners; get the unelected and unaccountable judges to re-interpret the constitution and bypass all democratic process.
Honestly, as someone who recently moved out of the city where someone asked Charlie Kirk when it would be okay to start shooting people they didn’t agree with, this doesn’t seem as absurd as it should be.
You can only come to this conclusion by ignoring the actual merits of the case in question and the makeup of the Court decision in Roe. It’s like saying Brown vs Board of Education is simply an exercise of partisan power, rather than the obviously right right outcome reached by a unanimous bipartisan Court. Just as Roe was a 7-2 bipartisan decision, with 5 Republican appointees in the majority! Overturning Roe will be something entirely different.
“Pro-choice” has enjoyed narrow margins of popular support over “pro-life” for nearly any polling period over the last 45 years. Even larger margins have opposed overturning Roe. And even larger margins than that support abortion rights in at least certain circumstances: when the mother’s health or life is endangered, in cases of rape or incest, or when it’s likely the fetus will be physically or mentally impaired.
IOW if there was a national popular voter referendum on abortion, pro-choice positions would almost certainly win. And the Court’s decisions on this issue have mostly reflected popular consensus.
Here are the partisan liberal minority unelected judges usurping the will of the people in Roe:
Blackmun (appointed by Nixon)
Burger (appointed by Nixon)
There were 3 Democratic appointees on the entire Court. That’s some naked power play, that is.
And every justice on Casey’s Court was appointed by a Republican president except White, who dissented and voted against upholding Roe.
It’s almost as if the mythology of Dems using liberal activist judges to legislate Roe from the bench is, well, made up.
Appealing to the “merits of the case” is just another way of saying that it’s OK to bypass democracy as long as you agree with the ruling.
So maybe pro-choice campaigners should have been working to pass laws that reflected that majority.
For a long time it’s seemed to me that the ability to frame political issues as things to be resolved by the Supreme Court has been a tactic that single-issue campaigners have found impossible to resist. And it corrupts politics, because it becomes a winner-takes-all game that is obviously democratically illegitimate (at least to the losers). Or going back to @Enidigm’s framing of political issues as constantly festering instead of being resolved, the Supreme Court is often the cause IMO. Because no-one on the losing side sees a court ruling that invalidates all current and future legislation on an issue as fair or democratic or just. Because, in general, it’s not; not if you believe in democratic principles.
I hear this all the time from the progressive / liberal / democrat majority on this forum. “Roe is the law of the land” people say, clearly happy to accord that ruling infinite legitimacy. But in general the same people will complain bitterly about Heller or Citizens United as travesties that obviously need to be overturned. Not once have I seen someone declare that “Citizens United is the law of the land” in the same ringing tones. This kind of schizophrenic attitude to the function of the Supreme Court is symptomatic of the problem. It’s great when your side wins, and a source of huge injustice when the other side does.
My caveat is that if this Mississippi law was put to a national referendum it would also probably win. Public support for “abortion for any reason” is pretty low, as is support for post-first-trimester abortion.
Well, my original point was precisely that our political system makes this difficult, and that’s a root of the problem.
I don’t disagree with this, though I’m not sure that abandonment of judicial review is the solution. I suspect that there are traps there. I think progressives pretty consistently do wish for a different structure for the Court–certainly more justices, with limited terms, a rotating bench, something that dilutes the impact of elections on it. The primary problem with the Court isn’t its decisions (though they may be bad), but the way it distorts elections.
Well, which is it? Should we expect that the Court functions to protect the rights of citizens in the face of laws which trample those rights, or should we expect that the Court will not do that? If it is the former (which seems rather obvious to me), won’t it always be the case that those rulings might seem anti-majoritarian, since they’ll be overturning laws which resulted from the democratic process?
Are you going to just ignore the partisan makeup of the majorities in Roe and Casey, BTW?