I like to think that some of you enjoy reading this site; to the extent that’s true, please accept my apologies for the prolonged hiatus. I’ve redesigned the site, and re-emphasized small posts, to make site management more sustainable with my new schedule, which includes new responsibilities at the new-ish job, and now a new girlfriend too! But, let’s get back on schedule.
Look down the page, and you’ll notice two things. First, it’s been a while! I know, sorry. Second, in the immediate aftermath of the Affordable Care Act litigation, I managed to thoroughly convince myself that we were probably headed for a loss. Even the optimistic posts, you’ll see, took a defensive tone, like I was trying to convince myself. I was.
Regardless of how we came by the win — and reserving for now any judgment on whether Roberts’ Commerce Clause discussion, whether holding or dicta, could yet lose us the war — this was a win. President Obama proceeds to the general with his signature accomplishment intact, and the Tea Party must wait for another day to roll back the New Deal, re-instate Lochner, or vindicate the Constitution-in-Exile. It’s also a win for the political process: Republicans did not receive, through litigation, what they couldn’t win through the political process. The issue reverts to the people, to decide in the coming election. That’s for the best. Certainly, some countermajoritarianism is a good thing. Necessary, even. But there would’ve been something particularly noxious for Republicans to win their chief issue — a regressive reinstantiation of pre-New Deal, pre-Great Society limits on federal power — in the Court, without first persuading the public that they were ready to walk away from a 75-year experiment, wholesale.
Andrew Sullivan and Ross Douthat praise the decision on that basis, with Ross, of course, going for a larger point: that Roe v. Wade, and so much of the Court’s other progressive social holdings, demonstrate the “the arrogance of a judiciary that deem[s] itself qualified to seal an enormously significant issue off from normal democratic deliberation,” and so differ from Roberts’ even-tempered decision to pass the buck back to the voters. It’s a common argument, that Roe somehow ended the national conversation on abortion, and wrong in an illustrative way.
The Supreme Court decisions never end the debate. As the reaction against Roe should demonstrate, for anyone with eyes to see, Court decisions may change the conversation, but the Court supplies the last word only in the short term. Counter-movements always materialize, and seek to limit the effects of the Court’s decision by incremental legislation, reverse it by amendment (or statute, in some cases), or convince the Court to overturn itself through concerted impact litigation. If the Court truly offered the last word on abortion, Roe wouldn’t have been followed by Casey or (Lord knows) Carhart II. To paraphrase Clausewitz, legislation is litigation by other means, and litigation merely legislation by other means, too. The process always continues. The Court’s only job is not to push the ball too far down the field, a result that Roberts plainly contemplated, but thankfully avoided.