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.
Cranky Observer–
I am starting to wonder the same thing. Rove grossly underestimated the amount of money the
Democrats would raise when he laid out this campaign two years ago. I think we can definitely expect some negative tricks and meanness, but as far as having a pulse on the American people, I think Karen Hughes is more the person we should be watching out for. Has anyone else noticed that Bush has been better since she rejoined the campaign in earnest? She definitely has the emotional pulse of some of Bush’s base. Old stories here in Texas were of the rivalry between Hughes and Rove…wonder if they are true.
The Democrats just need to move quickly as these things arrive, or throw out some things of their own first, so that Bush is more on the defensive…
I think Rove’s recent appearances on talk shows, etc…shows that they are getting a little panicky.
We just need to keep working–fast and furious!
> We can be assured that Rove’s end game
> ground war will be ruthless, unethical, viscious and
> full-bore.
I have a harder and harder time accepting the “Rove as evil genius”, with the emphasis on genius, meme. As Markos has observed, Kerry managed to evaporate $200 million worth of pre-nomination spending in 90 minutes at the first debate. And if Rove has some genius-like October surprise he has exactly 16 days and ticking to pull it off, which isn’t much.
Cranky
Like Teresa, I’m a little concerned. After reading the NYT Bush profile by Suskind, I’m also fearful that this info from Rove could be a strategic sideways leak. There was some scary talk in that article about volumes of new registrations coming from churches, and a figure of 4 million adamantly pro-Bush evangelicals who WERE NOT registered in 2000.
We can be assured that Rove’s end game ground war will be ruthless, unethical, viscious and full-bore.
Let’s not let ourselves be lulled by ANY Kerry numbers’ strength into not giving our fullest GOTV effort — and then some.
I think the 4 point margin to protect against the expected uncommitted/independent break for the challenger makes great sense. It’s just logical given the well established pattern among late deciders.
We must be on the look-out for whatever Rove has in mind to get himself a 4 point margin in the next two weeks. Right now he is either tied or down a couple of points.
It seems clear that Rove needs an actual lead and an average turnout. My only question is, what day will the inevitable terror alert come out—-1, 2, or 3 days before the election? And will it specifically involve Ohio? This seems the most likely October surprise.
The question everybody needs to be asking is where is Bush going to get any NEW voters?? Remember he lost the populat vote in 2000 and there hasn’t been any announcements about any voting block that has changed their minds about him since 2000.. Its just not in the numbers and he know its.. I do believe, millions of republicans will crossover and vote for Kerry..
Sounds like classic Rove disinfo.
My read is the opposite: the Republican campaign on Kerry has sowed enough doubts in swing voters’ minds, that unless Kerry is at least 2 points ahead going into election day then he might well lose.
Also there is the Ralph Nader factor.
It seems to be coming down to Pennsylvania, Florida and Ohio. Of which Kerry seems to be closing the deal with PA, but losing OH and Fla. W. Virginia seems to already be gone.
WI is the other likely defector to the Bush camp: that remark about Lambert v. Lambeau field has cost Kerry big time with Green Bay fans, apparently (Kerry got it wrong).
I hope I am wrong, and I sense real disquiet about Bush amongst the (Republican) parents of my American friends (in London) but the world opinion is so solidly against Bush (except in Israel) that I think it blinds us to the reality.
I wait for Rove’s October Surprise, and expect it will be a doozy.
Does anyone know why http://www.pollingreport.com only reports the “likely voters” poll numbers on their website and not the “registered voters” poll numbers?
Dear Alan,
My first reaction was to this inside scoop that the Bush campaign believes it needs a 4 point lead going in was elation. My second was to suspect that that this was a rumor purposely placed by the Bush campaign. Mr. Rove is famous for this type of tactic. Please don’t let hope distract us from working our tails off for the next three weeks!
Ruy, very interesting comment from Rove.
Check this out…
Oct 17, 2004
John Kerry for President
http://www.nytimes.com/2004/10/17/opinion/17sun1.html?oref=login&pagewanted=1&hp
Voting for president is a leap of faith. A candidate can explain his positions in minute detail and wind up governing with a hostile Congress that refuses to let him deliver. A disaster can upend the best-laid plans. All citizens can do is mix guesswork and hope, examining what the candidates have done in the past, their apparent priorities and their general character. It’s on those three grounds that we enthusiastically endorse John Kerry for president.
Was it not Rove who, way back in 2000, raised eyebrows when he said that Bush would, “win in a walk”? What a difference four years make, eh?
That’s really not clear enough. If Bush has a 4 pt lead in the nat’l head to heads, but less than that in the swing states that give Kerry 270, then Bush won’t win.
Apparently Rove doesn’t want to talk about the “T” word (turnout) either. Consideriing the margins Bush had in 2000 in the last week, what he really needs is fairly consistent margins across polls, and possibly one of 5-8 points.
Question on polls.
The campaigns seem to have sharper, and perhaps different, polling results. I infer this from comments such as that which this post attributes to Karl Rove. It must mean that Rove/BC04 have a different idea of who the “likely voters” are than that of the nationally published pollsters.
Why is that so?