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.
> Bush and Cheney are increasingly desperate. So their
> rhetoric will be increasingly shrill and over-the-top.
> They have painted themselves in a corner with their
> scare campaign.
I think the Kerry camp needs to be careful in the final debate. They’re saying the subject (domestic issues) should favor the Dems, but a *lot* of observers are saying “Shrub” actually fared better in debate#2 than when he had to defend his failed Iraq strategy.
—
My fear is “Shrub” and the GOP will try to exploit the usual cultural wedge issues in the final debate, and Kerry will give some vague Dukakis-esque responses. Maybe they will accuse the Democrats of banning the bible and requiring men to marry other men… It’s what they do when their Iraq policy is in shambles, there are fewer jobs than four years ago and the federal government is drowning in red ink thanks to the tax cuts.
MARCU$
Mimikatz, you wrote:
I think that Bush really damaged himself with undecided women in the second debate. His demeanor in the first half was the sort of swaggering, cocksure braggart that most women detest. He was rude to many of the questioners, particularly the older man who asked about drug reimportation and the last woman, who asked about his mistakes. Women tend to be more attuned to social niceties. Third, the abortion question. Of course rabid pro-life women would go for Bush. But his refusal to understand any nuances to that issue, and his favoring the fetus at the expense of the mother’s health or even her life, had to make many women cringe. Expect to see Kerry rise a few points in the next polls because of this.
Posted by Mimikatz at October 9, 2004 05:22 PM
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I absolutely agree.
All the talking heads need to pull their HEADS out of their collective ass and look around. The ONLY voters who matter are those in the middle who are undecided or persuadeable. If oozing faux machismo would have won them, they wouldn’t be persuadeable now.
Many woman respond very negatively to men to exhibit the behaviors of Bush, mainly because most have been bullied by some similiar sounding male all too often. They know it instantly as the boyfriend or husband who was always going to have things his way, and wanted to shout down opposition. Or the boss, or the co-worker, or the husband of a friend.
Bush had to have lost all women who were anywhere near the fence.
I am predicting that Kerry will gain the lead from the second debate and not lose it again.
We should begin to see evidence of it tomorrow or Tuesday.
I think that Bush really damaged himself with undecided women in the second debate. His demeanor in the first half was the sort of swaggering, cocksure braggart that most women detest. He was rude to many of the questioners, particularly the older man who asked about drug reimportation and the last woman, who asked about his mistakes. Women tend to be more attuned to social niceties. Third, the abortion question. Of course rabid pro-life women would go for Bush. But his refusal to understand any nuances to that issue, and his favoring the fetus at the expense of the mother’s health or even her life, had to make many women cringe. Expect to see Kerry rise a few points in the next polls because of this.
RE: Angry Man
Between the blatant lies and the anger Bush’s public persona is morphing from “Someone you would like to have a beer with”* to Richard Nixon.
*I am only quoting the spin, I always thought that line was a load of nonsense
Two points.
1. Bush and Cheney are increasingly desperate. So their rhetoric will be increasingly shrill and over-the-top. They have painted themselves in a corner with their scare campaign.
2. In each debate there was an initial effort in the media to prop up Bush and Cheney’s performances. They quickly abandoned the effort in the first debate in the face of Bush’s obvious stumbling. With Cheney/Edwards and last night the effort is more resilient, but has weakened after time as the consensus pointed out reality. They are the incumbents defending a sorry record. They are defensive and angry. They insist they are right and their defense consists of outright lies or distortions or browbeating. All Kerry has to do is sound reasonable and truthful.
Expect them to now go back to the August formula – attack Kerry with lies and slander. But now people have seen and heard Kerry. That swiftboatliar won’t hunt.
It is disappointing that with such a strong performance by Kerry (better than the first debate, although the improvement in Bush was enormous), the polls wouldn’t show Kerry with a stronger win. The press will insist that it was a draw.
Kerry FINALLY introduced the point that the whole ‘wishy-washy’ (but he was talking about flipflops) issue was a mere spin. He needs to explain that more clearly.
The questions were also really favorable to Kerry. I really admired Kerry’s frankness with his “it’s not a matter of if but when” response to the question about another 9-11, but he should also have been more specific about the history (unsure when the 1993 attack and the following attack in E Africa he alluded to was? — chalk that up to tiredness). In my own mind, Kerry’s substantive forthrightness in answering that question contrasts with Bush’s “And he put a trial lawyer on the ticket” line. The irony of the latter is that trial lawyers are often resented as people who profit by demagogically appealing to juries in an emotional manipulative way — just like Bush was doing in his approach.
KERRY HAS GOT TO STOP USING THE WORD “PLAN” SO OFTEN. He needs to sharpen his attacks on Bush’s policies on health care as for the corporate interests.. He could have left Bush looking like an ogre in response to the environment question. He should take the opportunity as he lays into Bush in the last debate on either tax policy for the wealthy and/or pro-corporate health care policy to give a good NICE AND ACCURATELY HARSH picture of Bush the worst kind of stereotypical big business Republican and go into at least three or four specific environmental policies. Kyoto ISN’T winning him any points with the mainstream, although I support it. How he has made backroom deals with corporations that even the Republicans wouldn’t pass thru Congress and then name SEVERAL NEW ones: mercury policy should be specifically described, as well as one or two other horror stories like that.
On jobs, Bush keeps citing the 1.9 million figure. That is his BEST(and only) year of job growth, after massive declines, and it’s worse than the AVERAGE year of 8 years of Clinton. That punches Bush down at his main point on that issue.
It doesn’t even keep up with the growth of the potential job market.
He was a little confusing at the key point on how he had been consistent on the Patriot Act — the issue of being a flipflopper and explaining how he isn’t is probably more important than the issues of the Patriot Act as far as winning the elections. Kerry focuses on the issues — Bush on winning the election. But still, Kerry had a slightly better demeanor than Bush and was MUCH stronger on the substance. He answered the questions and devastated Bush’s arguments. The polls should (have) reflected that — though perhaps the talking heads (with the conservatives insisting it was a big win for Bush and the liberals taking a balanced approach of a narrow win for Kerry) have an impact.
Lookin’ good for K/E, but I’m still waiting for an Oct surprise(s). Read the Atlantic Monthly essay on Karl Rove if you don’t understand my anxieties.
Bush gave tired excuses for poor performances. He did not appear to have a real grasp of either Foreign Policy or Domestic issues.
Paul C. is right. Bush came off like a raving lunatic for the first 45 minutes. However, I thought Bush got the better of JK on the domestic issues, where his folksy, simple-minded stuff came across more succinctly than Kerry’s thoughtful, but long-winded responses.
Most people aren’t smart enough to follow along with complex lines of political reasoning, so I hope Kerry can sort of sharpen his domestic stuff before next Wed.
Thanks for the news on independents.
Bush did much better this time than last, but I still think that the main dynamic of the debates is to demolish the straw man that the Republicans have constructed. Kerry comes across as reasonable and presidential. Which he is. That completely undermines the Republican attacks. In contrast, there’s not a lot that Bush can do to undermine the Democratic attacks.
I am sure that Kerry beat Bush by 10 to 1 among people who only watched the first half hour of the debate. What did his people tell him –“George, if you say it loud enough, people will believe you.” My favorite line was Jeff Greenfield “Mr. Bush, two words — ‘anger management.’
way to go, kerry.
why won’t the main stream media report these internals?