While the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will go down in history as a 6-3 decision with only the three Democrat-appointed justices dissenting, Chief Justice John Roberts actually did not support a full reversal of Roe v. Wade and Planned Parenthood v. Casey. His concurring opinion, which argued that the Court should uphold Mississippi’s ban on abortions after 15 weeks of pregnancy without entirely abolishing a constitutional right to abortion, represented a path not taken by the other five conservative members of the Court.
When the Court held oral arguments on the Mississippi law last December, the conservative majority’s determination to redeem Donald Trump’s promise to reverse Roe v. Wade was quite clear. The only ray of hope was the clear discomfort of Chief Justice John Roberts, as New York’s Irin Carmon noted at the time:
“It seemed obvious that only Roberts, who vainly tried to focus on the 15-week line even when everyone else made clear it was all or nothing, cares for such appearances. There had been some pre-argument rumblings that Barrett and Brett Kavanaugh might defect, perhaps forming a bloc with Roberts to find some middle ground as happened the last time the Court considered overturning Roe in 1992’s Planned Parenthood v. Casey. On Wednesday, neither Barrett nor Kavanaugh seemed inclined to disappoint the movement that put them on the Court.”
Still, the Casey precedent offered a shred of hope, since in that 1992 case some hard and imaginative work by Republican-appointed justices determined not to overturn Roe eventually flipped Justice Anthony Kennedy and dealt a devastating blow to the anti-abortion movement. Just prior to the May leak of Justice Samuel Alito’s draft majority opinion (which was very similar in every important respect to the final product), the Wall Street Journal nervously speculated that Roberts might be undermining conservative resolve on the Court, or change sides as he famously did in the Obamacare case.
In the wake of the leak there was some reporting that Roberts was indeed determined not to go whole hog in Dobbs; one theory about the leak was that it had been engineered to freeze the other conservatives (especially Justice Brett Kavanaugh, who during his confirmation hearings had said many things incompatible with a decision to reverse Roe entirely) before the chief justice could lure them to his side.
Now it appears Roberts tried and failed. His concurrence was a not terribly compelling plea for “judicial restraint” that left him alone on the polarized Court he allegedly leads:
“I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further certainly not all the way to viability.”
Roberts’s proposed “reasonable opportunity” standard is apparently of his own invention, and is obviously vague enough to allow him to green-light any abortion ban short of one that outlaws abortion from the moment of fertilization, though he does seem to think arbitrarily drawing a new line at the beginning of the second trimester of pregnancy might work. Roberts’s real motivation appears to be upholding the Court’s reputation for judiciousness, which is indeed about to take a beating:
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
In his majority opinion (joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, along with Kavanaugh) Alito seems to relish in mocking the unprincipled nature of the chief justice’s temporizing position:
“There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party …
“The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt …
“The concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent … That is simply incorrect.”
One has to wonder that if Merrick Garland had been allowed to join the Court in 2016, or if Amy Coney Barrett had not been rushed onto the Court in 2020, Robert’s split-the-differences approach eroding but not entirely abolishing the constitutional right to abortion might have carried the day in Dobbs. But that’s like speculating about where we would be had Donald Trump not become president in 2017 after promising conservatives the moon — and an end to Roe.
An astonished reaction from the Bush-Cheney team? Probably not. Unlike the Washington press corps, I credit these guys with having a brain in their head. No doubt they’re busy trying to estimate the magnitude of the spike to be generated by the Saddam Trial, and trying to figure out if they can time it to coincide with November. If not, an invasion of Syria might do the trick.
I’m wondering whether the CBS/NTY poll might be the start of the first anti-spike in the Bush presidency, brought on by angry conservatives protesting the immigration reform and trip to Mars. Time will tell.
What are we as Democrats doing to get this issue out into the debate?
Um . . . Teddie gave a nice speech the other day. You get a pat on the head, Ted!
But seriously, it sends me into the slough of despond to watch our media. I never used to be one of those conspiracy-theorist types, ranting about the “corporate media, bought and paid for,” but lately . . . you’ve just gotta wonder.
In addition to the media’s shameful performance, there’s our leading Democrats, who really did, as Dean claims, roll over for Bush on the war. They only began to make an issue of the deception after Dean started gaining traction with his anti-Iraq war message, and even then they’re in a tricky spot: they all still justify their votes, when they manifestly should have known better. Only a few Dems (Fritz Hollings comes to mind) have said flat-out, I voted for the war and I shouldn’t have because I was duped. Would that Kerry just ‘fess up.
What about the Weapons of Mass Destruction? Even those shells found by the Danes lask week and paraded as having residue of blister gas have proven negative for chemicals. Where is the backlash? Where’s the scandal? Where’s the public outcry?
Are there going to be hearings on this or what? What are we as Democrats doing to get this issue out into the debate?
Pessimism confirmed! I see that the CBS News Web site headlined this poll “Bush’s Approval Sinking,” but the NYT (much more important) had the more equivocal and therefore “objectively pro-Bush” (ha ha) “Poll Bolsters Bush on Terrorism but Finds Doubts on Economy.”
Neither the article nor the headline are really out of line (like USAT’s puff piece), because the numbers ARE equivocal. Still, the news about Bush’s approval sinking doesn’t show up until paragraph three. Buried further in the data or the graphs are two other numbers that are very negative for Bush: his historically high disapproval rating (45 percent) and the re-elect matchups showing a negative two percent against an unnnamed Dem.
The Pessimist here: But how will the press play all this? I see that NYT headlined it properly (Bush Support Sinking), but will the rest of the media follow suit? I mean, let’s not forget that Ruy pointed out USAT’s astonishginly dishonest headline and story from their poll last week: something like Bush Approval Soaring, but you had to go to their Web site and look at the raw data to find out that his approval had actually sunk 3 points.
And let’s not forget Time magazine’s wonderful cover story on Dean last week, the one about all the doubts about his electability, the one that didn’t bother to inform readers until the third-to-last paragraph that their own poll showed Dean only six points behind Bush, and running ahead of the rest of the Dem pack in one-to-one matchups.
I pretty much agree with Scout.
The thing people are learning about the Bush administration is that the good news, be it about the economy or Iraq or whatever, never stays good, whence the smaller and smaller bounces. You can be spun only so many times before you stop placing any credit in it. Bush is very close to quota with most Americans.
The Chopped Down Christmas Tree continues…
Since 9/11, Bush has had huge peaks followed by slow declines. Each one, however, peaks smaller and declines faster than the last; we may have seen the absolute last “branch” of the tree, if you will, with the Saddam Capture, and I think the Mars Initiative was an attempt to get more “bounce”. But there wasn’t, and this is a good sign. In an election year, domestic ideas are key, and Bush doesn’t have any- and with the deficit looking like it is, I think people might actually get sick of hearing “taxcuttaxcuttaxcut” as a sound domestic policy.
Great blog, by the way.
One of the indicators that it would evaporate quickly was that in the December poll (which I thought I had around here somewhere, but can’t find so figure my like of hard figures ) when respondents were asked:
SPLIT HALF – ASK EITHER 53 OR 54
53. Do you think removing Saddam Hussein from power is worth the potential loss of American life and the other costs of attacking Iraq, or not?
9/28-10/01 ’03 | Worth It 51% | Not Worth It 41% | DK/NA 8%
12/10 – 13 ’03 | Worth It 47% | Not Worth It 43% | DK/NA 10%
12/14 – 15 ’03 | Worth It 54% | Not Worth It 37% | DK/NA 9%
54. Do you think result of the war with Iraq was worth the loss of American life and other costs of attacking Iraq or not?
9/28-10/01 ’03 | Worth It 41% | Not Worth It 53% | DK/NA 6%
12/10 – 13 ’03 | Worth It 39% | Not Worth It 54% | DK/NA 6%
12/14 – 15 ’03 | Worth It 44% | Not Worth It 49% | DK/NA 7%
When Saddam was taken out of the equation more people (nearly a majority) said – “Not Worth It”. This was right at the time of the capture. So it was clear that as Iraq returned to being about an ugly occupation in a country that seemed fairly ungrateful for their liberation, that wasn’t speeding towards democracy and less about eliminating public enemy number two – then Saddam’s capture would not provide sustaining political capital.
One of the indicators that it would evaporate quickly was that in the December poll (which I thought I had around here somewhere, but can’t find so figure my like of hard figures ) when respondents were asked:
SPLIT HALF – ASK EITHER 53 OR 54
53. Do you think removing Saddam Hussein from power is worth the potential loss of American life and the other costs of attacking Iraq, or not?
9/28-10/01 ’03 | Worth It 51% | Not Worth It 41% | DK/NA 8%
12/10 – 13 ’03 | Worth It 47% | Not Worth It 43% | DK/NA 10%
12/14 – 15 ’03 | Worth It 54% | Not Worth It 37% | DK/NA 9%
54. Do you think result of the war with Iraq was worth the loss of American life and other costs of attacking Iraq or not?
9/28-10/01 ’03 | Worth It 41% | Not Worth It 53% | DK/NA 6%
12/10 – 13 ’03 | Worth It 39% | Not Worth It 54% | DK/NA 6%
12/14 – 15 ’03 | Worth It 44% | Not Worth It 49% | DK/NA 7%
When Saddam was taken out of the equation more people (nearly a majority) said – “Not Worth It”. This was right at the time of the capture. So it was clear that as Iraq returned to being about an ugly occupation in a country that seemed fairly ungrateful for their liberation, that wasn’t speeding towards democracy and less about eliminating public enemy number two – then Saddam’s capture would not provide sustaining political capital.