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.
I’m not sure the aim of simply “eroding” Bush’s support on Iraq is a responsible position. Shouldn’t the facts be mroe important. On that question of facts, I will cop to being one of these “nitwits” who do believe in an Iraqi connection to 911. What about Salman Pak? Google that and see what you find. What about the civil verdict that held Iraq liable for 911 damages? Was that a vapor? What about the Iraqi connections to WTC1, which are hardly in dispute to Richard Clarke, to name one. Maybe when the Democrats honestly engage the debate, their stock on national securty issues will rise.
It’s all about “the devil you know.” If Kerry can move past the stigma of “the devil you don’t know,” he’s in. As you have pointed out numerous times, Bush’s support is melting like lake ice on a spring day. A little more heat and, voila’!
Right now, these polls indicate that people will still go with the devil they know over someone they don’t. John Kerry needs to aggressively define himself, before George Bush does that for him.
Did Kerry’s entire campaign decide to go skiing with him in Idaho? The lack of any discernable response to the recent Bush onslaught sure makes one think so.
Hopefully, that’s going to be a one-time anomaly.
Never underestimate the soft bigotry of low expectations coming from the nitwits for W.
A followup thought: Hillary Clinton has quietly given some excellent, constructive speeches on foreign policy in the last few months. She has come off as serious and substantive, and not a cheapshot artist.
The major speech Kerry needs to give in the next day or two should be along the same lines. If he does so in a constructive tone he’ll help establish himself as commanding and reassuring among some of the persuadables who are still preferring Bush on Iraq and national security. He’ll also entitle himself to a few tastefully worded whacks at the Administration in so doing.
Surrogates and pundits will take the harder shots in case the implications of Kerry’s speech aren’t crystal clear to everyone.
Cheney told Limbaugh yesterday that Clarke was out of the loop on anti-terrorism policy. Yet Rice ceded leadership of the response to the crisis on 9/11 to Clarke. If Cheney was being truthful wouldn’t Rice’s decision be a criminally reckless thing to do?
I don’t know if Kerry has offered much of substance about what he would do to combat terrorism or in Iraq but I agree that if he has done so he is not being heard clearly.
He needs to be heard clearly soon. There aren’t going to be lots more Richard Clarkes coming down the pike handing him the national security issue on a silver platter. Kerry I believe is very much up to offering the country the reassurance that he would be a far steadier and more trustworthy Commander in Chief. He needs to step up–now–and do it.
It’s not at all surprising that the public trusts Bush more than Kerry on Iraq. Kerry hasn’t told the American public how he would deal with Iraq. He hasn’t even begun to present himself as the “steady reassuring presence” that he needs to be on Iraq, the military, and terrorism.
When it’s a matter of life and death, the devil you know is better than the one you don’t.
To win this coming election we absolutely have to see “Trust in Bush on Terrorism, etc.) driven down in the polls. I think this is basic — how to do it is the question.
One contradiction jumps out at me after a day of reading and watching the post Clarke commentary, and that is the matter of whether Iraq is part of “war on terrorism” or is it distinct? Apparently at least 50% still hang with the belief in a strong link.
So how to break this link? Clarke offers us the story of Bush trying to bully him on 9/12 into providing intelligence that supports the belief in a link. They tried to dismiss that bullying — but there were witnesses and they had to back down a mite.
But Bully the intelligence gatherers and analyists became the principle mode of operation come Iraq time. Even to the extent of destroying operations and trying to smear Plame and Wilson, because they were in the way of the bully.
Something tells me this is the story that just might work with that 50% who still “Trust” on Nat Security and War on Terrorism matters. The image of Bush as Bully when faced with evidence that disagrees with his pre-determined world view might just knock down some of these approval points.
What’s to wonder about regarding the fact that Bush’s numbers on national security are better than Kerry’s?
The last two Democratic presidents, Carter and Clinton, were loath to use force or even talk about the use of force with respect to the Soviet Union or terrorism. Not surprisingly, the American people have tilted towards the GOP on national security because Republican presidents were not finicky about the use of force or calling for more armaments on a continuous basis.
If we are going to be engaged in a long twilight struggle against the terrorism of radical Islam, and it would appear that we are for the foreseeable future, then the democratic party and its standard bearers are going to have to use a different kind of language and style to persuade the American people that they are up to the job of keeping everyone safe.
BushI ran against Dukakis while the Cold War was still in its last stages. We know the outcome. Bill Clinton ran against BushI at the end of the Cold War and during a weak economy. We know what happened there. Now we have BushII running against Kerry during a weak economy and a nasty struggle against a shadowy terror network.
If Kerry expects to win he’s got to show first that he has the spine to tear into Bush on his national security failures and present, with the help of surrogates, a credible plan of action against terrorism. One more week like the last one and Kerry will be toast.