Thursday Thoughts: A tale of two tweets

This is Joseph.

So the leaked Roe versus Wade opinion has elicited a variety of reactions. On one side, we see the group that sees abortion as unique and unlikely to lead to further dramatic changes:

On the other hand we have people who are deeply concerned:

I think the real point of concern is what happens next. James Joyner, who I have always seen as fairly right wing, has this point to make that I think is largely correct: 

Regardless, Tribe’s larger point is surely right. There’s nothing stopping a Court that is willing to simply disregard precedent from making wholesale changes to the way the country is governed. Even aside from various “rights” that previous Courts found hiding in the shadows of the Bill of Rights, there are strong signs that this collection of Justices may overturn the very foundations of the Administrative State. Grounded in the Constitution of 1787, they have a plausible case for doing so. But it would be dangerous, indeed, making governing a modern continental superpower next to impossible

Really, this is the key point of concern. The law is a living and breathing thing, that evolves over time as technology and circumstances also evolve. It goes forward and backwards, makes mistakes but ultimately creates the underpinning of how to make a complex society work. Codified law has been a feature of complex (i.e. agrarian) societies for at least 4,000 years. There are different types of law but the sort of constitutional law that the United States uses is deeply based in precedent. It is also a system with a lot of veto points and a written constitution. It might be that a parliamentary system could react more quickly to a radical court -- but that isn't the US system. 

Now it is possible that things will improve. This could be a bad draft that is a lot better in final form. I hope nobody ever leaks the first draft of one of my papers! There could be bargaining to improve the legal reasoning and bring it more into line with precedent (laws can evolve, or, perhaps, devolve). It could be a one off decision like Bush versus Gore, that ages badly but does not foretell of future radical decisions (the Megan McArdle view, above). 

That said, I go back to Abraham Lincoln. In the face of a major internal crisis, he expanded the court to its largest historical number as a part of stabilizing the country. If there is too much tampering, I think we should consider that the primary legislative body is congress and that the democratic accountability of congress makes it a far better branch to enact radical change, should it be desired.