This is consistent with what I'm seeing in lefty analysis and even on this board, example: "This is a rights issue and the law will be struck down by the SC as it should." That's not a valid justification for the supreme court to over turn a law in our system of gov't.
First, I appreciate the more accurate characterization of progressive/liberal opposition to DOMA. Second, IANAL (either), but I believe there's considerable legal precedent to support that civil rights violations are a valid justification to overturn a law in our system of government. You might disagree with the validity of the precedents or whether they should apply to DOMA, but there's considerably more backing the position than "it's wrong because we say so" or "we just want as much power as possible".
I'm arguing that Democrats are willing to abandon the constitution to in act their progressive policy preferences (expanding federal gov't to enact a host of positive rights that enable them to balkanize the American public along single issues). Game theory demands a tit for tat approach. A nice guy approach just means you always get screwed. Republicans should strike back with laws that follow the same legislative philosophy, but enact conservative policy goals.
Likely results: progressive left challenges to new conservative laws are upheld at SC (likely with support of conservative and libertarian groups), creating precedent to over turn the progressive laws on the same ground. DOMA example would be that if the SC over turns it saying the federal gov't cannot tell states who is married or not because they haven't been granted that power leads to a challenges to a ruling on a topic we are not allowed to discuss.
I'm not arguing that its a good thing overall - but I think its necessary to play hard ball in politics.
If you're familiar with game theory, then you should be aware that:
- tit-for-tat is not an optimal strategy in all game theory paradigms, although it's believed to be in most of the more "famous" versions. It also requires in-kind response to positive actions by the other party. It's not just for competitive retaliation.
- game theory approaches tend to produce faulty conclusions when applied inconsistently or asymmetrically. For example, in this situation, if game theory demands conservatives respond to progressive expansion of federal power by supporting expansion of their own, then it equally demands that progressives respond with support for further expansion, then conservatives respond in kind, and progressives in kind, etc. etc.
The net result of the tit-for-tat approach over time is both conservatives and progressives continually promoting greater and greater federal authority, and only differing on where and how the expansion should occur. This is much more in line with progressive philosophy than conservative, and that's without getting into practical considerations like conservative voters becoming much more disillusioned with their party's actions than progressives are with theirs.
The Supreme Court could derail this process early on as you mention, but it's a lot of eggs to put in a basket that has both historically and recently shown an inclination to support expanded federal powers. And even if these hypothetical rulings strike down these hypothetical conservative laws, they may well do so in too narrow a manner to be equally applied to progressive policies.
Unless the SC responds in a fairly specific way early in the process, it's difficult to see tit-for-tat as you're describing it as an optimal conservative strategy. It can sound appealing in individual iterations, but from a conservative perspective, the longer this strategy is employed, the closer it seems to get to the old saying "When you wrestle with a pig, you both get covered in 'mud' (altered for CB) and only the pig likes it."