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.
Anaylsis of state by state can be found at http://www.mydd.com and at the polling report. Too close to call.
To understand the political attitudes of College Students at any given time, it is useful to remember they have very little knowledge of political history beyond their own political awakening during their teen years. Like it or not, that is their frame of reference. For those in college today, the dominant images would be Clinton’s second term with the Impeachment mess, followed by the Florida Election mess and then 911. There is little in any of that likely to turn them toward fairly progressive political ideas, or even introduce them into the mix. For those of us who are older — and remember things like Vietnam or Civil Rights or even Watergate — we have to pinch ourselves and remember that the vast majority of today’s college students only know those events as part of political history through some films, perhaps a fes pages in a text book, or maybe listening to a few conversations with their parents generation. Most have no knowledge of these things at all, because they are not really represented in the popular culture in which they have lived their lives. They will poll accordingly until something brings them up short, and they make an effort to acquire a broader frame of reference that includes at least some history they did not personally experience. Aah yes, there are exceptions — but the vast majority of undergraduate students are profoundly a-historical, and always have been.
the polls probably are only polling about 20 people per average size state. you can find seperate state-wide polls though.
yes, i agree. does anyone know where such a national poll may be (w/ state-by-state info.).
Can somebody do a state-by-state analysis (with current polling data) to show how the electoral college will pan out if the election were held tomorrow?
The shift is unboubtadly thanks to Mr. Kerry. Kudos to him.
Have a look at the results–there’s a link at the end of Ruy’s essay. 78% of the respondents are White. 30% of those who say they’re Republicans cite their family upbringing as the main reason, and 65% of all respondents say their parents’ total household income in 2003 was over $50,000. Perhaps most significant of all, 33% of the respondents are freshmen, and 23% are sophomores, so the sample is skewed heavily toward students who are under 21. They are the people who haven’t seen this movie before–the big deficits, social reactionaryism, and militarism of Republican administrations.
My guess is this:
Financial aid at colleges has been getting shittier and shittier, and the proportion of working, and even lower middle, class, people who go to them has been decreasing, even at state universities. This means that the people at 4-year colleges are closer and closer to Bush’s ‘base’ among the wealthy.
Not to say that most college age people are right wing now, because they aren’t. But as someone who spent 4 years at college, and then two at grad school, all at the same university (I finished my Masters quite recently) I saw the student body change from majority left and left-of centre to majority apolitical, with the left and right having about equal visibility on campus. And I went to school in Massachusetts. I can only imagine what it’s like in the rest of the country
I had no idea Bush support among college students was previously so high. That’s just bizarre to me – very counterintuitive. Why do you think that was?