Tobold's Blog
Friday, July 01, 2022
Forcing politicians to do their job

As you know, I live in Belgium. Belgium is a very complicated nation, as it is basically separated in half: There is a northern half, Flanders, where people speak Dutch, and a southern half, Wallonia, where people speak French (not to mention Brussels and the east cantons). The two halves are culturally very different, have different core values, and frequently don't get along very well. With each half having left and right parties, plus some others, agreeing on anything is difficult. Belgium currently holds the world record for the longest time to form a government after an election, at a whopping 541 days. And with all that, Belgium still manages to have a system that is less broken than the one of the United States of America, which is currently unraveling.

The political system in the USA is not only strongly divided, it is also designed at the federal level to make it possible for the minority to block the majority from doing very much. So in the second half of the 20th century a lot of very fundamental political decisions were left undecided at the level of the people who were supposed to make the laws. Every other country, including Belgium, managed to make a political decision on difficult questions like abortion or climate policy. The USA didn't. Instead they construed a twisted chain of thoughts in which these difficult questions were designated as "unenumerated constitutional rights", which is to say that these rights aren't in the constitution, but could somehow be argued to be similar to rights that are in the constitution. And so the decision about these difficult political questions were left to the Supreme Court.

That was not a good idea. Supreme Court justices are unelected officials for life, and thus probably the last people you'd want to make political decisions. And this year the Supreme Court actually came to that very same conclusion: These are political questions best left to lawmakers, not judges. While the *outcome* of striking down Roe vs. Wade and decisions about the EPA are reported as a win for the Republicans (who had stacked the Supreme Court with conservative judges), the reality is that the judges simply said that these are political questions that shouldn't be decided by them and they handed the job back to Congress.

While this temporarily creates a huge mess, because now politicians will be forced to make political decisions on difficult issues (like in every other democratic country), it also creates a huge opportunity for the Democrats. The Supreme Court didn't say abortions were illegal, it just said that the constitution didn't cover the question. A law that replaces Roe vs. Wade at the federal level will be needed at some point in the future (like every other democratic country has). And while the issue is very divisive, it appears clear that a large majority of Americans is very much for the right of a woman to have an abortion with some sensible restrictions. If Democrats campaign for such a law, and Republicans against it, that could very much swing the majority towards the left. It is a much more winnable political fight than an ill-defined "woke vs. anti-woke" cultural war.

The issue is when the court decides to throw out decades of precedent it calls the legitimacy of the institution into question.

What's stopping one party from simply appointing more justices to the court until it rules in their favor if the court is openly political and no longer abides by precedent. There could conceivably be a scenario where the each party just adds onto the court as the come into power.

But yes the US needs to and should have already codified these issues into law and not relied on judicial rulings to be the basis of these rights. Democrats failed to pass these laws when they held a super majority so let's see if they actually try to make it happen the next time they have that power.
And while the issue is very divisive, it appears clear that a large majority of Americans is very much for the right of a woman to have an abortion with some sensible restrictions. If Democrats campaign for such a law, and Republicans against it, that could very much swing the majority towards the left.

Ha, no. We're closer to a federal ban on abortion than codifying a right to it.

Biden won the 2020 popular vote by 7,060,140. But the actual margin of victory was... 42,918 votes. Had things went different in Arizona (10,457), Georgia (11,779), and Wisconsin (20,682), we would have a 2nd Trump term. Does it matter that California alone gave Biden 5.1 million more votes than needed? Nope. California still gets 2 Senators, same as Wyoming (pop. 579k). And while California does have more House members than Wyoming (53 vs 1), the actual proportion is out of whack (740k vs 579k). Which means people in Wyoming have more representation in government than people in California.

Every single thing is systemically stacked in favor of the Republican minority. Even now, Republicans are extremely favored to win the House in November, which means there will be zero movement possible on Roe - or any laws whatsoever - even if Democrats somehow hold the Senate (which is only slightly Republican favored in 2022). If Republicans win both chambers, we will have two short years of Presidential vetoes until the end of US democracy in 2024.


Democrats had a supermajority for 2-3 months total and even then not all 60 were pro-choice. The filibuster is dumb, but I suppose everyone could just steel themselves for abortion being legal/illegal every 4-8 years at this point. Although good luck getting clinics to stay open in that environment.
It seems to me that the system is working as intended, not unraveling.
2-3 months is plenty of time to pass legislation when politicians actually want to get it passed.

The harsh truth is Democrats used codifying abortion and LGBTQ rights for fundraising without a real plan to pass legislation because they never thought Right to Privacy would be overturned.

Republicans do the same thing which is why under Trump they never repealed the ACA despite campaigning and fundraising on it.

But yeah these are the consequences of the lack of agency on the Dem side and willingness to keep the status quo on many things.
@Bigeye, you do know that the only reason ACA wasn't repealed was because of John McCain, right? He voted no on the repeal and doomed it. If he were more of a "team player" on the Republican side, the ACA would have been repealed. So no, it had nothing to do with Republicans not wanting to lose fund raising, it was because John McCain had a spine.
I appreciate your perspective from afar.
I believe if the Democrats had run any other candidate against Trump other than Hillary, then things would have been different. The DNC decided it was a woman's turn to win and backed her so the 2 candidates with the highest unfavorable ratings ran against each other. People asked how fundamentalists could support Trump, and now they have a clear answer. The current impasses are a dance that requires both sides to decide not to compromise. There has been recent progress in the middle; so I'm hopeful especially since as you point out, the Court is trying to force them to do their job.

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