Thread by @asymmetricinfo

And now we brilliantly segue into my next tweetstorm, on the hysteria that has gripped the left, and the triumph that has gripped the right, as a result of Anthony Kennedy's retirement: washingtonpost.com/blogs/post-par…

Okay, maybe that segue wasn't brilliant. Maybe it was really boring.

It's the curse of a writer: not every transition can be a fabulous, glittering thing. Moving onward.

The questions on this column came from two directions.

One consisted of saying "You're right, of course, that it's not healthy to be investing so much in Supreme Court nominations. And the other guys should totally stop their blatant, hypocritical attempt to jam their legislative preferences on the public through the courts."

"But of course you can't expect us to step back from gun rights/abortion/free association/gay marriage/free speech/campaign finance reform/etc. Those rights are too important to leave to the legislatures!" To which I say: guys.

I too have my share of issues that I feel are sacred. And in my defense, many of the rights I think are sacred are pretty carefully enumerated in the constitution, unlike (sorry, equal protection fans) abortion and gay marriage.

But I also recognize that saying "We should just go with what the constitution says" is therefore awfully convenient for me, isn't it?

There's a tension here that will never be fully resolved--we have to honor the constitution, but we also require democratic legitimacy. Which we will not have if the Supreme Court is ramming my policy preferences down the throats of half the population, with no chance of appeal.

That's a problem, even if the substantive results make me happy. Which means that we need to come to some understanding that the courts aren't always going to intervene on one side or the other. That means me losing some fights I think I should win on textual grounds.

Unfortunately, we're very far from this kind of compromise. Conservatives are thrilled they've got the courts. Liberals are completely convinced that there is, and must be, a constitutional right to every social policy they think is good. I don't know how we get there.

But the alternative is pretty bleak, especially since Congress and the president seem happy to abdicate their powers to the Supreme Court.

And I'm going to pause to specifically talk about Roe, because Roe is one of the worst of these sorts of decisions: "emanations and penumbras" that eminate not from the constitution, but from the broad consensus of the social class from which most judges are drawn.

This isn't about whether you support or don't support abortion rights. It's about a weak ruling that blatantly imposed the views of the judges on the rest of the country, not because the constitution required it, but because they could.

Instead of settling an issue that no other institution could handle, they took on a legislative function that the states were perfectly capable of resolving.

And therefore, instead of letting people hammer out uneasy compromises, they left conservatives no redress except to organize themselves to seize and hold control of the Supreme Court long enough to overturn it. That's bad democratic politics; it was made necessary by Roe.

(Yes, they could have just sucked it up. Liberals could have just sucked up Citizens United and Heller and all the rest of it. No one ever advises their own side to just give up on an issue as central to their conception of justice and human rights as abortion is).

But of course, having done so, conservatives didn't just take after Roe and other mid-century judicial overreach. They had their own laws they didn't like--"I have a little list ... they never will be missed ..."

If it's bad when liberals do it, it's bad when conservatives do it.

Which brings me to the second question my column raises: since I'm calling for judicial modesty, should judges leave Roe in place?

Answer: No.

Precisely because this wound hasn't healed. I think the right will ultimately learn to live with Obergefell. But they're never going to learn to live with Roe, because this involves hundreds of thousands of babies that aren't born every year. You don't learn to live with that.

So the right thing to do is cut out the cancer at the heart of our judicial politics. Put it back to the states. Let people hammer out the compromises consistent with local values that they ought to have done thirty years ago

Yes, I understand how angry this makes a lot of feminists. But my sisters: you already lost. There is nothing you can do to stop Roe from being overturned if five judges want to do it. Which should tell you something about the wisdom of relying on courts to write abortion law.

So you can raise a bunch of money helpessly hyperventilating about what will happen, or you can use the opportunity to try to establish some joint norm that we're going to keep legislative issues in the legislatures, recognizing that means sometimes we'll have to compromise ...

But also that we are not then vulnerable, to, say, five justices ruling that equal protection requires a nationwide ban on all abortions. Which is something the Supreme Court could totally do, if it had a mind to.

The great mid-century liberal insight was that they wouldn't have to take half a loaf in some boring legislative compromise if they could get the court to give them everything they wanted.

The great late-century conservative realization was that two can play at this game.

And the great 21st century realization should be that this is a terrible game that everyone loses, and we should stop playing.

Which brings us to the end of another tweetstorm! washingtonpost.com/blogs/post-par…