Tuesday, July 3, 2018

What May be Coming from the Supreme Court

Good, rational discussion by Noah Feldman about what a firmly conservative Supreme Court majority may mean for the country. A sample:
The aftermath of a decision striking down the right to abortion would be complicated. Democrats would have to convince majorities in each state to protect abortion. It could become impossible for women to obtain legal abortions in the numerous states that have tried to enact more restrictive abortion laws in recent decades (only to have them struck down by the courts). Abortions could be outlawed in much or all of the South, the Southwest, and the intermountain West. Those with means would still be able to travel to states that permitted them, but women too poor or young to travel would find it vastly harder to end unwanted pregnancies. Many people would probably react by taking to the streets, organizing, and voting against such restrictive laws and the politicians who put them in place. Abortion rights would immediately become a wedge issue for Democrats. Their goal would be to push women who might otherwise vote Republican into the Democratic column.

Once abortion rights were constitutionally recognized, liberal efforts in connection with them were, rationally enough, redirected to preserving the composition of the courts, rather than actively trying to convince those who rejected such rights to change their views. For as long as abortion has been legal, conservatives, for their part, have been able to count on the crucial votes of centrists who prefer conservative candidates but quietly want to preserve the option of abortion. With Roe overturned, Republicans might lose the 34 percent of their voters who believe that abortion should be legal in most or all cases.
Not to mention that most abortions are now performed by swallowing pills, and getting them won't be any harder than getting opiates or amphetamines. And:
Support for gay marriage has risen steadily for twenty years, from 27 percent nationally in 1996 to 64 percent in 2017. Remarkably, the shift can be discerned even among evangelicals born after 1964, 49 percent of whom now believe gay marriage should be legal, compared to just 35 percent of all evangelicals.

For this reason, gay marriage may be one significant progressive rights victory that could survive even a conservative majority on the Court. Emboldened conservative state legislators might try to pass new laws contravening the Obergefell precedent and restricting marriage to one man and one woman. Yet the political cost of such efforts would probably be extremely high, as not only liberals but also mainstream corporate interests would respond with state-level boycotts. Some conservative justices could potentially accept gay marriage as a fait accompli, given how quickly attitudes toward it are changing. A conservative Court would no doubt allow religious liberty exemptions for merchants who do not wish to serve gay couples. But if gay marriage remains the law of the land, such exemptions will come to be seen as compensatory concessions to the losing side in a culture war, rather than steps toward reversal of the right to marriage.

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