Has the Supreme Court Cleared the Way for a Grand Compromise?

Recent decisions by the Court might force Americans to put a price on their stated principles.

The day after I wrote my last Monday Note in reaction to the Dobbs ruling, the Supreme Court handed down a ruling in West Virginia v. EPA that was no less impactful. Both cases sought to limit the proliferation of legal activism in favor of more democratic mechanisms. Dobbs overturned a legal precedent that the Court found had no standing in the Constitution, and EPA clipped the wings of a regulatory agency that the Court found had acted outside of the scope of any existing legislation. Dobbs kicked the question of abortion down to the states, and West Virginia made more aggressive climate action dependent on Congress passing explicit legislation allowing it.

A “democratic mechanism,” of course, does not automatically imply “good” (we tend to conflate “the good” with “democracy” far too automatically these days). But it does at least gesture at a means of arriving at a consensus on legitimacy. Better put, it gives us yet another means of coming up with the kind of fragmented consensus that may be the only way forward for our country. It seems to me that markets may end up as a transmission belt of sorts for arriving at some kind of national equilibrium on these very divisive issues. Let me explain.

The day after EPA, I was musing to a friend of mine who follows climate policy closely. Maybe, I said, the United States can never be as governable as we moderns think a modern state ought to be governable. The Constitution is a balancing, compromise document. It was made the way it was not just to ward off tyranny through checks and balances, but also to pull together the minimum amount of legitimacy to get the fractious states together in the first place.

Progressives have at times fantasized about a Second Constitutional Convention that would somehow get all the countermajoritarianism out of the system. As a thought exercise, this dream has always got me to reflect on how little the country has changed in more than 200 years. Imagine trying to forge a new Constitutional consensus today. It’s hard to see how one could pull the states together a second time, short of, well, abolishing the states themselves.

You might be right, my friend countered. The only way forward for climate legislation, then, is for all the blue states to enact the kind of climate-friendly policies that they think we need, and use their collective advantages in hosting big businesses—clustering and network effects, better infrastructure, access to educated workforces—to get red states to abide. His argument had echoes of what some conservatives have defined as “woke capitalism”—that control of the c-suite in blue states would mean that company-wide activism on issues such as the climate would carry the day.  But, he admitted, there is the danger that corporations would exploit loopholes. Companies could put their polluting assets in less confining jurisdictions while maintaining “knowledge economy” headquarters in blue metropolises.

Maybe this is OK, I countered. Mississippi’s GDP is only slightly smaller than Slovakia’s, for example. We don’t lose that much sleep when poorer European states allow in industries that are no longer welcome in more economically developed places, and as a result drag their feet in implementing aggressive climate policies. Europeans anxious to create a federalist Europe often bemoan that the EU is not nearly as integrated as the United States. Maybe instead we Americans ought to think of our states as naturally more analogous to EU member countries.

Then, this morning, I saw an echo of this conversation in the New York Times, this time however looking at the repercussions of Dobbs. It leads off by recounting how Illinois Governor J.B. Pritzker has already been pushing for companies headquartered in the south to make the move to his state. The governor’s pitch is explicit: we have the educated workforces you need, and these workforces have come to expect all sorts of conveniences, including access to abortion. The article notes there are no takers thus far to Governor Pritzker’s entreaties, though perhaps it’s early yet.

Meanwhile, in Michigan, where post-Dobbs a battle is being waged over a longstanding (but since Roe, unimplemented) abortion ban, business leaders are also voicing concerns.

“An extreme response is not in the state’s competitive interest,” said Sandy Baruah, president of the Detroit Regional Chamber, an influential business association in Michigan. “To the extent that the data shows today that young professionals care about this issue, I don’t want to give young professionals a reason not to come to Michigan to work for Michigan companies.”

“To the extent that the data shows” is an important, and notable, hedge. Both Dobbs and EPA have not just democratized questions that some in the country have sought to put beyond the reach of democracy. They may also end up quantifying the depth of people’s commitments to various social issues. Just how much do young professionals care about abortion rights? Can we put a price on it? If that price ends up being high, the onus will then turn to conservative activists, who will have to justify their moral intransigence to an unhappy electorate. Similarly, would a young professional turn down a well-paying job at corporate headquarters in New York City knowing that the company has polluting subsidiaries operating in Arkansas? Let's see.

I suspect the effects will be muted, and especially so on climate. But regardless of the outcome, we will have added yet another mechanism for finding an uneasy balance in the country. Between the ballot box and price signals, we’ll likely end up with a patchwork of regulations on both abortion and climate. But maybe, as I said, that’s the best governance outcome we can hope for. More important still, maybe it’s no worse than any other place in the world.