I meant to say this the other day but didn’t get around to it: I think David Brooks is fundamentally correct in saying that our politics won’t get less bitter until Roe is overturned. For one thing, I suspect its overturning would make it much easier for politicians who were pro-choice-with-real-restrictions or pro-life-with-real-exceptions to succeed, because activists on both sides would be fighting real policy battles.

(I think, however, that to lament, as Brooks does, the way that Roe has poisoned the judicial-confirmation process is to view things from the wrong angle. If the Court is going to exercise this kind of power, it’s appropriate for people to do what they can to influence it and make it the object of a political struggle.)

Ann Althouse argues that Brooks is wrong: Overturning Roe would just re-allocate the bitterness in American politics, giving more of it to pro-choicers. “Ironically, if, after all these years, social conservatives finally gain a majority on the Supreme Court that is willing to overturn the precedent, it will activate political liberals and libertarians. And one thing they will want is their majority back on the Supreme Court.”

Althouse is certainly correct that pro-choice unhappiness would increase after Roe’s demise. But let me try to offer, at least, some qualifications to her conclusion.

1) The familiar point about the Supreme Court and the politics of abortion is that any move it makes in one direction activates the losers and makes the winners complacent. Thus Roe massively enlarged the pro-life movement and Webster revitalized the pro-choice movement. But if Roe ended, pro-choice activation would, I think, not likely be matched by pro-life quiescence. There would be too many state (and federal) legislative battles to fight, and nobody on the pro-life side would think their work done. I think there is reason to think that a lot of the energy on both sides would shift away from the Supreme Court by necessity.

2) Am I making Althouse’s case for her in predicting a lot of legislative “battles to fight”? I don’t think so. In a lot of places, you’d have state laws that restricted abortion a lot more than it is restricted today, but not as much as pro-lifers (like me) would like. So hard-core partisans on both sides would be unhappy. But hard-core pro-lifers–let’s say, people who believe that abortion should be outlawed in all three trimesters except when rape, incest, or the continued survival of the mother are involved–would be less unhappy than before. And while people who want abortion to be legal in all three trimesters for any reason would be more unhappy than before, there aren’t many of them. You can get majorities of the public to endorse something very close to the hard-core pro-life view, but you can only get in the low 30s with the hard-core pro-choice view (and even that’s stretching it). Public policy on abortion would be closer to median-voter sentiment. And the sense of the law’s illegitimacy would be much harder for the losing side of any battle to maintain (as Brooks points out).

3) Our assumption has so far been that Roe dies in one decision. What if it dies incrementally? Maybe the Court will give back legislative authority one trimester at a time, as its composition slowly changes. That scenario would of course involve continued attention to Supreme Court confirmation battles while the dying took place, but would also change the way the legislative and electoral politics played out–and I think the change would make the Brooks thesis look stronger.