Hey wow! I've poked a stick into a hole, and Unf has come out!
Cool!
The problem is that he says precisely nothing. Of course "its not always best for the Supreme Court to declare issues beyond the reach of politics." The question is, and has always been, when does the Ct. go hog-wild and when doesn't it. Brooks has to make the next bit of the argument - something like, "there have been compelling rationales offered for Brown, but none for Roe," or "neither Brown nor Roe were properly decided," or something. I take Berube to be pointing out that need by reference to Brown.
It's actually worse than that, because he does his typical hackwork:
Liberals lost touch with working-class Americans
if those minority rights were weakened, the federal role would grow and grow - especially when Democrats regained the majority.
And then does say something very stupid
Unless Roe v. Wade is overturned, politics will never get better.
Without even bothering to address Unf's question of whether the genie can be put back in the bottle (it can't). And all that is to not even mention how blithely he's willing to curtail abortion rights.
There is a very serious question here about whether reliance on the courts is ultimately bad for our politics, but it's beyond stupid to pretend that overturning one decision could fix things.
Moreover, he seems to be pretending things that don't seem true: (1) that there wasn't a fair bit of politicking about the Court before Roe (e.g., FDRs court packing scheme), (2) that there hasn't been fairly murderous politicking in the Senate before (e.g. it was Senator McCarthy, wasn't it?) , and (3) that the abortion issue is, somehow, more contentious than any other (e.g., desegregation and civil rights).
No one should suppose that, should the Right Wing get its way on Roe v. Wade, that change in a right-ward direction would stop there.
The "right to privacy" on which access to contraception and gay rights, among other things, is based may well go right out the window.
The judges may decide that the States are required to protect the "rights" of the fetus, or even the embryo, and that States can NOT legalize abortion.
If Roe is reversed, abortion will never be "settled" in the red or purple states - it will be another issue to be stirred up in presidential election years, or when senators like Reid or Salazar are up for re-election. State constitutions can only be amended to ban gay marriage once or twice. Even if you don't care about the reproductive rights of women in "TX, LA, etc." you should fear the results of having this battle over and over in state after state.
Digby has good post pointing to the impeach Earl Warren movement in the sixties to show that the arguments about the supreme court didn't start with Roe v. Wade.
My heavens, could civil rights be invoked as a catch-all defense for judicial activism? Why, I have never heard that argument before!
As some wise person noted, it is important for all of us, but particularly for the political right, to have the example of civil rights front and center in our political consciousness. So let's just grant that the evil of Jim Crow was such that all sorts of extreme measures could be justified. I believe a war was even fought on a related issues and perhaps this indicates that the oppression of black Americans is the exceptional domestic issue of the past two hundred years.
Rhetorical questions:
Is the lesson of the civil rights struggle that anti-democratic means should be employed all the time?
Are not progressives very tired of hearing every military adventure justified by the re-fortification of the Rhineland, or by derisive reference to the generally pathetic performance of leftists in opposing communism?
Does not this type of argument seem fundamentally lazy?
Those are good questions, as long as they're not offered as a defense of Brooks's column.
I remember, just a couple of weeks ago, something or other was going on in Florida. And many people on the right said, "State by state decision making isn't ok, this is an issue of life." And people on the left said, "Well, now that you're saying that, we know that if Roe v. Wade were overturned, that wouldn't be left to the states either." Are we forgetting so soon?
So I don't see how overturning Roe v. Wade would return the issue to the States. It seems entirely possible that anytime a new party has a majority in both houses and the presidency the whole nation's abortion laws would switch.
There are two points here. A) Roe fucked everything up. B) reversing Roe would set things back in order.
Let us assume that A is true. I think it might be, actually. Politics was always crazy, but the judiciary was not so bad off before Roe. Roe feeds conservative anger.
Nevertheless, B does not follow from A. You can't put the genie back in the bottle. If Roe was overturned, you would just have more angry people.
I don't think Brooks even understands that B might not follow from A. Which is why I don't read him.
What is it with people and "judicial activism" and "made abortion off limits for the legislative process."
NOTHING is off limits for the legislative process if it's done at the constitutional level. The MA Supreme Court can't just declare gay marriage ok. What it can (and did) do is to declare the restriction of marriage rights to heterosexual couples a violation of the MA constitution.
What puts these issues "beyond the reach of politics" is the lack of votes to amend constitutions. If these issues had the overwhelming popular support the right claims they have, it would be no problem for them bypassing judges with constitutional amendments. For Christ's sake, we've had constitutional amendments banning alchohol.
The reality of course is that they push minority "values" legislation through stacked local legislatures, and when the courts inevitably strike them down what with it being against the fucking law of the land and all, declare judges and the left of operating by "undemocratic" methods.
Show us your democratic values juggernaut and pass your constiitutionial abortion amendment giving the states regulatory discretion already.
Or could it be that the majority of voters in this country are uncomfortable giving individual states the power to rule on fundamental human rights? (human rights such as a woman's sovereignty over her own body)
I was going to make the exact point that textualist did.
And come on, as far as why the courts are resented--it was Roe, partly. It was also Brown, Bolling, the busing cases, Loving, Goodridge, Lawrence. The only one of those I think is wrongly decided was Roe.
EVERYONE has these debates without reference to the content of the cases. Sure, you can distinguish Loving from Goodridge and Roe from Brown--but you actually have to distinguish it, bitching about
As far as lefty overreliance on the courts: it can start there, it's often the best place if the law really is on your side. Not a damn thing wrong with it. Anyone who holds up the Ct civil unions bill as an example for why it wouldve been better to be patient & wait for the legislature is just completely full of it.
It shouldn't end there, though.
This isn't substantive -- just Brooks bashing: Even if everything he said were true, which it isn't (as ably pointed out by everyone) this isn't an interesting insight. It's not an insight at all -- the idea that the whole problem with the judiciary and with abortion rights is that Roe was a bad decision is the tiredest of conventional wisdom on the right. Now sometimes the conventional wisdom can be right, and when it is (i.e., not here) there's nothing wrong in using it to support an argument, but coming up with a full column of it, with nothing new or interesting, is lame.
Well, the novelty is to use that tired old trope to cover for the GOP leadership's plan to go nuclear on this question. "Roe v. Wade made me do it!" Or maybe: "Look! Over there! It's the divisive effect of Roe v. Wade!"
Oddly, I think Roe may have been the best decision for the right. It's a clear, easy statement to argue against; it's powerful in convincing swing voters (Catholics, especially, who are often drawn to the left's social platforms but worry about abortion); it allows them to spin themselves as about life, family, white weddings, apple pie &tc.
Where would the right get its fire, if not from Roe ? Gay marriage? Maybe.
All this is by way of saying, I think Brooks may have a grain of an insight, but I don't think it's the insight he thinks it is or that the solution is to overturn Roe .
gswift beat me to it. Roe does no damage to the structure of the republic. Amend the constitution and be done with it, or don't. Brooks' argument is, once again, idiotic.
Maybe the courts were forced to decide because the legislative branches were just not going to resolve the issue quickly enough? After all, it took Brown vs Board of Education for the executive to actually settle the civil rights issues which were around pretty much since independence. Also, it is questionable whether it would be worth the costs to millions of women if they had to wait for abortion decisions from legislatures. See what's the situation in Ireland for example. Brooks' column cleverly avoids all these issues and carries a certain whiff of dishonesty, probably to hide his personal dislike for Roe vs Wade.
actually, it took almost ten years after the passage of Brown v. Board for the legislature to do anything (Civil Rights Act). Although Brown certainly had a lot to do with the momentum that the civil rights movement gained up to that point, it can't take sole credit; a lot of people had to march, face violence, etc. Brown, by itself, didn't get much done.
Which is just to say that courts don't have as much power as we think; they can't enforce their own decisions. If a sizeable bulk of the population is against the decision, it may go unenforced. The fact that Roe never had enforcement problems is a pretty good argument that it wasn't in fact contrary to the great weight of public opinion, as conservatives would like to believe. This flows nicely into the "where's the abortion amendment movement?" argument.
So I disagree that the courts are generally good at stepping in when real policy issues are in dispute in the legislature. But if Roe had been as big a screw up as conservatives claim, it wouldn't have been enforced so uniformly as it was. If that makes sense.
tex, I disagree that we can draw those lessons about Roe from Brown. Enforcing Brown required a whole lot of government action--they had to desegregate the schools 'n'at (and then figure out ways to resegregate them, but I digress). Enforcing Roe just required lack of government action--not enforcing anti-abortion laws.
So Roe is a case where the judiciary really did have the power to enforce its own decisions. If some DA had tried to prosecute someone for performing an abortion post-Roe, the judge could just say "Get that shit outta here." Brown was more difficult.
(I'm still sympathetic with the view that Roe wasn't as big a screwup as conservatives claim.)
point taken.
Refusing to enforce Roe might have required some judicial involvement. You can imagine a world, however, in which Roe was immensely unpopular, and a number of state judges refused to apply the decision, or limited it in such as way that it allowed for prosecution of doctors who practice abortions under some set of facts.
But judges are less likely to engage in that kind of resistance because it weakens their own position in the long run, even state judges. And actually, it would require state prosecutors and other actors to prosecute those cases. And therefore the scenario I described doesn't really limit your point that the judiciary as a whole had an easier time enforcing Roe than Brown.
Still, hospitals could have, en masse, refused to employ doctors that practice abortion, etc. There was no such mass movement.
Point taken yerself about the hospitals. In fact, as I understand (I wasn't around), covert abortion was pretty widespread even before Roe. So there's good evidence that it wasn't the uniformly unpopular decision some conservatives seem to think.
If memory serves, abortion was legal 17 states in 1972. And there was an underground movement in the other states, as well.
Planned Parenthood got into trouble some years back for claiming something like 5,000 women died each year from abortion. Anti-choice activists like to site this, because the number was false. The real number was, IIRC, 39. As I understand it, that large number was arrived at because abortion statistics weren't readily available and PP was a bit lazy. They took numbers from earlier in the century of botched abortion deaths and adjusted for population. This shows more than anything the ubiquity of professional abortion even before Roe. There were ~800,000 abortion performed in '72. Adjusted for population, that's about 1 mil today, still less than the 1.4mil abortions/year in the latest figures. It would be interesting to compare that growth to the growth of the poor classes in America, but I don't have those numbers handy.