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.
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Minnesota will be close, but it is not “in play” in the usual sense. Polls are snapshots of a particular moment in time, and unless you know how to contextualize them — meaning you know something of the details of relevant political history at the local level — they have their limitations. MN is a good example of this.
I would really discount anything about 2002 results in Minnesota — remember, less than two weeks before the election, Paul Wellstone — our ticket topper was killed in a plane crash, and then followed the Republican induced flap over his memorial. The whole GOTV thing fell apart — it had been part of Wellstone’s campaign, and election law blocked all his funds. Turn out in key areas went south without it. Add to this the Independence Party (Jesse Ventura) which had recruited a former 5 term DFL member of congress, Tim Penny — to run for Governor.
In 2000 the Green were making their effort to get at least 5% of the vote so as to become an official party with automatic ballot access, and access to public funding for legislative and state candidates. This was their rational for support, and they did achieve that. They lost it in 2002.
The most recent poll in Minnesota gives Kerry a two point lead over Bush with about 8% undecided. The DFL has to work at it, without question, but assuming they have their act together this time (no statewide offices — no senate campaign) they clearly can deliver for Kerry. The caucus delivered well for Kerry, and everyone is pretty easy with that, even though much of the activist former Wellstone clan had worked hard for Dean.
I suspect every state needs to be characterized in these local dynamic terms, and without it, races can be misunderstood.
Well, I would put TN in red, WA and PA in blue though. I’m also not at all convinced MN is in play, hasn’t it voted Dem in like 5 straight presidential elections? Oregon also seems to have gone Dem 3 straight times, maybe I’m wrong. I would say Arizona, CO, FL, MO, NV, OH, WV, and WI are in play, but I think WV and WI lean our way.
I think it all comes down to if Kerry wins 1 of the following 3 – Ohio, Missouri, or Florida – any of those and he’s in. I’m an optimist; I see him winning FL and Ohio. But things could change.
Bush is in such bad shape for March, I’m pretty sure the elder Bush didn’t trail in ’88 until after the Dem. convention – and he wasn’t an incumbent.. I’m surprised all these pundits on the air act like he’s such a strong incumbent. I think he’s a very weak one. It it weren’t for his “war on terror” approval numbers, there’d be nothing propping Bush up.
Zogby’s analysis seems off to me, I’d put CO and TN in red, WA in blue, and PA in the toss-ups.
Yes I am, very much.
We need to keep the pressure on though, and keep the Rove team on the defensive.