JB

My op-ed on Roe and the Republican party's coalition appears in today's New York Times.

The Times, like most newspapers, gives you only about 700 words to make your argument, so I thought I’d add a few additional explanations about three important points that the op-ed raises. The first is how judicial review affects political coallitions, the second is how the Supreme Court diverts political heat onto itself, and the third is the special place of religion as a divisive issue in politics. These three ideas are analytically distinct, but they all apply to Roe, and for lack of space, they all had to be explained together in the op-ed. I'd like to separate them out in this post.

1. Judicial Review and Party Coalitions. The basic idea that shifting policy agendas shifts party coalitions is nothing new. The classic explanation of how judicial review preserves or destroys party coalitions by shifting policy agendas was made by Mark Graber in his article "The Nonmajoritarian Difficulty," published in 1993, and the basic idea about how shifting policy agendas fractures political coalitions was explained by William H. Riker in his book The Art of Political Manipulation (1986). Both used the Supreme Court’s decision in Dred Scott v. Sandford as an example, and Graber showed how the same logic applied to Roe.

The basic idea is this: Through its exercise of judicial review, the Supreme Court can either keep party coalitions together or it can fracture them. Roe is an example of the former, Dred Scott is an example of the latter. Both involve striking down statutes, but the issue is not really whether the Court strikes down something or upholds it. It is whether the decision keeps the party system together or blows it apart. Roe helps keeps the contemporary party system together, Dred Scott blew the party system of its day apart.

Before Dred Scott, the Democratic Party was amazingly successful at winning the Presidency. It did so because it was a coalition of Southern Democrats who were devoted to the preservation and spread of slavery, and Northern Democrats, who cared less about the issue. Instead, they dealt with the question through a series of compromises. Democrats in the North instead pushed for the idea of popular sovereignty. Each state and, more importantly, each territory could decide for itself whether it wanted to be free or slave. Dred Scott made this position impossible, because it held that Congress could not ban slavery in the territories, and that slaveowners had the right to bring slaves into the territories. This split the Democratic Party in two, destroying its chances at winning the presidency. As a result, Abraham Lincoln won the White House. Unable to accept the Republican Party’s control, South Carolina seceded, beginning the Civil War.

From the standpoint of the Democrats, Dred Scott was a terrible blunder because the Supreme Court made it impossible to form a working majority within the Democratic Party. On the other hand, if you think that slavery would never have been resolved peacefully, it was probably better that the Court wreck the coalition and get on with the War. In the casebook that Paul Brest, Sandy Levinson, Akhil Amar, and I edit, we have this to say about the timing issue:

If one objects to Taney's opinion on the grounds that it hastened war, consider that a decision freeing Dred Scott would surely have generated intense opposition by the already secession-prone Southerners, who might not have waited until 1860-61 to attempt secession. Consider also that the North might not have won a war begun in 1857, especially because of its lack of military preparedness and the fact that its Commander-in-Chief would have been the feckless James Buchannan rather than Abraham Lincoln. Is this a good reason to support the result in Dred Scott--that it bought the North valuable time? Or is your view that justice, i.e., the repudiation of slavery, should be done (and, indeed, is required by the Constitution) though the heavens (or, at least, the Union) fall?

Another recent example of how Supreme Court decisions affect coalition formation is affirmative action. The Democratic party includes African Americans, Latinos and white liberals who strongly support affirmative action, and moderates who are iffy on affirmative action. In this case, its possible that by applying strict scrutiny to affirmative action programs, the conservative Justices in the Supreme Court are actually keeping some people in the Democratic Party, because they limit how far the left wing of the party can push for affirmative action. The logic is very similar to that in Roe, with the parties reversed. If Croson and Adarand were overruled, it might not work to the advantage of the Democrats.

But the issue on the table right now is not overturning those decisions; It is extending them by overruling Bakke. That shifts the political agenda in a different direction than overruling Croson and Adarand, because it means less affirmative action, not more. If Bakke were overturned, and Croson and Adarand applied to university admissions, you might get more movement toward the Democrats than movement away from them.

2. Judicial Review and the Supreme Court as Lightning Rod. A different idea in the piece is that the Supreme Court can act as a lightning rod, taking heat from the political process and onto itself. The best recent example of this would be Judge Richard Posner’s argument about the 2000 Election. Even if the decision in Bush v. Gore didn’t make much sense as a matter of legal argument, Posner argues, it had the beneficial effect of resolving the disputed election and preventing riots in the streets. If Posner is right on his facts, I think this is an excellent example of how the Supreme Court can act as a lightning rod. I’ve argued in a recent article that Posner is wrong on the facts; there were no riots in the streets, and there were unlikely to be riots in the streets. The Democrats did not suggest that they would take no prisoners if they lost. (Ironically the party that was most likely to threaten civil disorder if they lost was the Republican Party, and since they are the law and order party we know they would never do a thing like that. :-) ). Therefore, it was unnecessary for the Supreme Court to act as a lightning rod to resolve the election, and it should not have done so. Still, it is true that two years after the 2000 election the bitterness about the election is largely sublimated in the general public, so perhaps Posner is right, although I’ve also argued that the memory of the election may still come back to haunt the Bush Presidency, like Poe’s tell tale heart. Only time will tell.

3. Religion as a Coalition Busting Issue. The final point the piece makes is that certain types of issues tend to be coalition busting and diffusing them by shifting the grounds of political agendas helps working majorities form; by contrast, other issues are less threatening to coalition building and controversies are less problematic for democratic politics. Slavery was one such divisive, coalition busting issue. I tend to think that religion is another, at least in contemporary America. This is not an argument against the recognition of religious argument in the public sphere, which I support. Rather it is an argument for certain types of decisions about religious liberty that help religious and secular people inhabit the same political space and belong to the same political party. One interesting feature of American politics is that although religion has played a central role in the development of American values, the political parties have usually been quite polyglot. The Democrats, for example, contained both Southern Baptists and urban Catholics. One reason why I support some types of changes in the current doctrines of religious liberty and not others is because of how they affect the everyday practice of politics. I hope to say more about that later.