William Galston’s latest Wall Street Journal column has a few suggestions to “de-escalate the partisan warfare that is undermining our capacity to act in common for the common good,” including this one:
It is also time to reconsider the outsize role that the Supreme Court has assumed in our national life. In my view—and I address this to my fellow liberals as well as to thoughtful conservatives—we need an extended period of judicial minimalism in which the court rules modestly and incrementally, with maximum respect for precedent and settled law. Narrow majorities cannot resolve deep cultural disputes and should not try to do so. Legislation may be slower, but it is surer, and it makes room for local differences within the federal system.
There’s an unexamined tension in this passage. Overruling Roe v. Wade and the abortion jurisprudence built up around it — indisputably the central item of contention in our judicial politics — would not be compatible with “maximum respect for precedent and settled law.” But keeping it would not allow legislation that makes room for local differences within the federal system. The Supreme Court’s initial grave mistake was to insert itself into the abortion controversy, and it has stubbornly persisted in that mistake. As a result there is no path ahead that avoids fierce partisan controversy.