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 AM REASSURRED THAT THE ZI POL REFLECTS WHAT I SEE IS THE CLEAREST PICTURE ON THE ELECTION. WITH SOME POLLS GIVING KERRY CALIF WITH ONLY A 50-42% ADVANTAGE I SIMPLY DO NOT BELIEVE THEM. WHAT I DO SEE HAPPENING IS THE PUBLIC RESPONDING TO EITHER KERRY AND HIS PERHAPS DULL , BUT FORTHWITH SPEECHS THAT DEAL WITH THE ECONOMY AND IRAQ WHICH ARE INTERTWINED, OR THE WAY BUSH HAS DEALT WITH THE ADVERSITY IN IRAQ AND HIS RELUCTANCE TO ADMIT SOME A MOUNT OF FAILURE IN PROCESS. IN MY VIEW THIS IS BRINGING KERRY AND BUSH CLOSER TOGETHER CLOSER TO ELECTION DAY AND THE DEBATES WIL GO A LONG WAY IN DETERMINING THE WINNER.
I never believed bush had that 11 point bounce. They lied about WMD, social security, medicare, taxes, the economy, iraq, and everything else. Why should we believe rethug polls like gallup? “figures don’t lie, but liars figure.”
This may be off topic, but Survey USA strikes (out) again. Speaking as a resident of Maryland, I can say with some conviction that there is no way Bush is even with Kerry here. Other surveys taken just recently (during some of Kerry’s worst campaign coverage) showed Kerry up by 9-10 points. The GOP governor of MD said that Bush would be wasting his time and money campaigning here.
Of course, it’s always possible that SUSA is right and everyone else (myself included) wrong. But this is the same survey that showed Kerry up by only 4 points in Illinois last week and was promptly contradicted by other surveys that showed Kerry with a double digit lead. And that produced a California poll with more Republicans than Democrats that was not shared by other surveys.
Looking at SUSA closely, I find that they have a Democratic edge of only 44-35 among Maryland likely voters (about the same among RV’s) when party registration here is more like 57-30 Democratic (approximately). And Bush is said to be (barely) ahead among suburban voters–apparently they forgot to poll Montgomery and Prince George’s counties. And they have twice as many conservatives as liberals–accurate in many states, but not here.
SUSA is starting to resemble Gallup in its sampling. And I’m not sure about Zogby, either.
I remain highly skeptical of ZI polls, but maybe more wired states may provide more accurate interactive polls. States like WV however, which are less wired, may not work out as well. I mean c’mon, Bush with a double digit lead in WV? When they are handing out ice cream and Bibles in hell, maybe.
What has Zogby’s track record been in terms of accuracy in presidential polling? This latest batch of state news looks like great news for us…but it’s also a little out of line with some other polling data.