Don’t Rely on the Supreme Court

I think that the Washington Post editorial on the laws greatly restricting or even effectively abolishing legal abortions being introduced or in some cases passed in state legislatures pretty much covers my view:

ANTIABORTION ACTIVISTS in Alabama may have overplayed their hand in successfully pushing for legislation that would effectively ban all abortions in the state and criminalize the procedure for doctors who perform them. So extreme — to the point of cruelty — is the measure that some national Republican leaders are trying to distance themselves from it. So patently unconstitutional is the measure that it is unlikely to ever take effect or, as its architects hope, be taken up by the Supreme Court.

None of that, though, makes the legislation any less dangerous. It — and laws banning abortion as early as six weeks after gestation passed by other states — open up a new front in the nation’s long-running battle over women’s reproductive rights. Buoyed by how the Supreme Court has been reshaped by Justice Brett M. Kavanaugh’s appointment, abortion opponents are adopting increasingly aggressive tactics.

To my eye all of the handwringing I have been seeing to the effect that “we are one Supreme Court decision from outlawing abortion” ignores something important: that has been the case since 1973. The real message in these laws is that you shouldn’t rely on the Supreme Court to accomplish your political goals for you.

Let me propose some guidelines for accomplishing durable political solutions to difficult problems.

• Figure out what you want.
• Persuade those with whom you generally agree to support that.
• Persuade enough of those who disagree with you and preferably a supermajority to enact legislation effecting what you want.
• If you can’t accomplish the above, you probably need to narrow your goal.
• Once you have accomplished your goal, don’t capitalize on it to expand beyond your initial goal.
• Don’t undermine stare decisis.
• Don’t rely on the Supreme Court to realize your goals for you.
• If, after the Supreme Court effects your goal for you, over time a supermajority of the people don’t come around to your point of view, the story probably isn’t over.

The Supreme Court has overruled its prior decisions more than 140 times in our history. In other words although that’s actually a pretty good record, Supreme Court decisions aren’t graven in diamond. They aren’t eternal. In the first century of the country’s history the Supreme Court overruled itself five times. In the last 10 years it has overruled itself ten times.