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.
muckdog,
Afraid to dive deep into what?
I don’t think anyone is arguing that the country is not still fairly evenly divided. But Kerry is now ahead in almost every single national poll. That can’t be good news for Bush, especially when conventional wisdom says that the undecideds will break for the challenger as election day looms near.
I’m not sure how you can say his message isn’t ‘selling well’ when he’s ahead in the polls, and when we’re still in the middle of summer with a lot of people still not paying much attention. I think a lot of people haven’t taken the opportunity to hear John Kerry’s message yet.
These “message readjustments” in the Bush campaign, to me, are reassuring signs that they know they’re in big trouble. They are trying to bend their tin ear to what the bulk of the electorate are telling them, but: “many call you the elite – I call you my base”.
The “base” – big business owners – was distressed during the boom because high employment led to what Greenspan called “wage pressure”. Wage presssure!?!?! I nearly fell over laughing! Those darn employees gettin’ uppity agin! Askin’ fer more money, th’ greedy bastards! W can only satisfy them by keeping unemployment high. This strategy, if he was able to do anything about it at all, seems to have worked too well! Since the economy failed to rebound “because” of tax cuts for the wealthy (I’m in the top 7% income bracket and they didn’t cut MY taxes that much), what then is the republican message? I don’t think more of the same is gonna cut it…
That WSJ journal article is in conflict with a piece in Barrons this weekend, citing Bureau of Labor Statistics regarding who is participating in the recovery. Most of the jobs are higher-wage jobs, according to the BLS.
Because Bush’s economic medicine did turn around the economy. The economy is surging ahead at the fastest rate in over 20 years.
What’s different now is global competition and the emergence of biotechnology and health care as the booming domestic industry, and the increasing supply of lower-wage technology workers overseas.
Bush should be talking about the expanding economy, AND the need to continue to improve.
I don’t think the Kerry misery message is selling well. Despite all the bad news for Bush, movies and op-ed spinning, the polls are even. And Kerry didn’t get much of a bounce from picking Edwards. Which is very strange indeed. Usually the challenger has a pretty big bump. Not Kerry.
Afraid to dive deep into that one?
Great article but… WHY ISN’T KERRY DOING ANYTHING?!
http://www.thenation.com/doc.mhtml?i=20040802&s=phillips
Kevin Phillips has written a very good article about how Kerry can beat Bush. It is refreshing, and backed up by historical precedent. Well worth the read.
That’s fast. AP today:
“”You’re probably here thinking I’m going to spend most of the time attacking my opponent,” Bush told the crowd. “I’ve got too much good to talk about.”
The president hardly mentioned Democratic rival John Kerry while contending that a second Bush term in the White House would extend the programs of tax relief and education reform enacted in the past four years. ”
This is off topic but I wanted to get your comments since you guys are so insightful. I live in one of the battleground states, SouthWest FL. Lately we are being bombarded by negative ads from the Bush campaign blasting Kerry. These ads are numerous not only on TV but on local radio as well. I’ve noticed that the new ads don’t feature a male narrator with a sarcastic tone but a female narrator who sounds sincere yet concerned. It is weird to hear a Bush ad on our local “oldies” radio station placed between Buffalo Springfield’s “There’s Something Happening Here” and The Beatles’ “Revolution”. These ads WILL have an effect on some people and the Kerry campaign needs to do something. I have a suggestion. Let me know if you think its a good one. If its not; let me know this too. After all, this is how we learn.
Kerry/Edwards should combat these ads by running their own ad (particularly on Radio) decrying the general negative nature of the Bush ads and the distortions and lies contained in them. I know it would be impossible to run an ad addressing all of these distortions but they should run a general ad urging the public to be wary of what they hear in these negative Bush ads. They should also direct the public to an easy source where they can read the truth about Bush’s allegations and see the explanations for certain allegations: such as why Kerry voted against the so-called Laci Peterson bill.
Perhaps the public could be directed to johnkerry.com where a PROMINENT link could be placed on the homepage addressing the lies and distortions of the Bush ads. Or better yet…Perhaps they could be directed to a new website: adlies.com or something. I hope you understand what I am suggesting. Kerry needs a way to fight this negative advertising beyond just a 10 second sound bite on MSNBC. Most people probably wouldn’t even visit the website BUT, Producing just one major ad that attacks the Bush campaign for going way overboard with the negative attack ads will accomplish at least 3 objectives:
1) It will instill in the public consciousness a doubt when they hear the myriad negative Bush ads.
2) It will demonstrate that Kerry is not just going to sit down and take it but he is FIGHTING BACK! He can even stay on the “high road” and keep running positive ads. His only negative ad will be an ANTI-negative ads ad!
3)It will offer the people a source to find the truth if they desire.
I can hear the end of the ad in my head right now:
(A sincere but concerned female voice)” Please visit JohnKerry.com now and click on the link, “AdLies” to see just how untrue and distorted the Bush Campaign’s negative ads have become. You will be glad you did.”
It would also be nice if we could make it clear that Bush has not lowered taxes at all. He has lowered tax rates. We are taking less taxes right now, but only because we are running unprecedneted deficits (not really, but nominally, and with the demographic sistuations they really are unprecedented).
However, in order to reduce taxes we need to reduce the amount of money that the government requires to run. On that count, Bush has masively raised taxes, and offers only empty rhetoric to do anything other than that.
We really should be pointing out that Bush has not lowered the tax burden, simply shifted it.
Sounds like someone with no real solutions telling his client — “hey, this message is doing great numbers for them, let’s co-opt it and use it ourselves”. Imitation = sincerest form of flattery, and all that. Or, more accurately, “watch what they do, then steal what works and make it your own!”
Yes, there are always going to be those drawn to the Republicans’ message about taxes. There are many people who are Republicans based almost solely on the tax issue, so I don’t see why they would ever stop harping about cutting taxes.
That said, the last polls I’ve seen on this issue stated a majority of people would rather do things such as have universal health insurance, pay down the debt, and fix social security even if it meant not getting tax cuts.
So while this strategy gives the Republicans a definite advantage among a certain segment of the population, I agree with Ruy in that I don’t think it’s something that would miraculously bring a bunch of undecideds into the fold.
I would be hesitant to imply that the Republican strategy of offering more tax cuts as a panacea for our economic concerns will not work, especially because it is “more of the same.”
Anecdotally, I know many moderates/independents who are swayed by the “tax cut” message every election year — that is, until you explain what goes with tax cuts, namely cuts in social spending and ballooning deficits.
Only if Kerry-Edwards can respond quickly to any discussion of further tax cuts by pointing out Bush’s promise to halve the deficit in five years, and pointing out the dissonance between the two proposals, can they effectively counter this very popular message.
That said, there is polling evidence that when you ask Americans about upper-Income taxes specifically, they tend to think that the rates are probably too low versus too high by 63% to 9%.
http://www.pollingreport.com/budget.htm
(Scroll down on the April 2004 Gallup poll)
Today’s Wall Street Journal has this article you may want to check out. Headlined:
“Affluent Advantage: So Far, Economic Recovery Tilts To Highest-Income Americans — They Gain More, Spend More; With Job Market Rising, Will Others Feel Rebound?”