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 really wish Kerry had made a strong statement warning the republicans against election fraud. Perhaps he will do so before the election. Let’s hopeand pray for America’s sake that the election is clean.
The other possibility, of course, is that maybe Dowd knows that the wheels are in motion for electronic theft of the election results, a possibility that scares the bejeezus out of me and one that I’m not convinced is being sufficiently managed by the DNC and the Kerry Camp.
makes sense given the administration’s adversion tofacts and insistence on “faith-based” approaches to the creation of their own realities (see kevin Drum).
The polls are encouraging one day, discouraging the next. Thanks, Tex, for at least trying to make some sense of it all.
It may come down to the ground game, after all. Especially to those of you in swing states…….call your local Dem HQ and volunteer some time. Most still need more people to work in a GOTV (Get out the vote) effort on Nov. 2.
Given the wide discrepancies in LV and RV results we’ve seen, and how much the LV polls differed from the actual result in 2000, is anyone prepared yet to state as a general principle either that: (a) Bush’s supporters consistently overstate their enthusiasm for their candidate to pollsters; or (b) that Democrats tend to understate their enthusiasm?
We can overthink this, or we can take it at face value. Either way
1. It’s a dodge
2. It’s true, because he’s complimenting Gallup on its work.
3. It’s true, because he believes it.
If it’s #3 then I’m thrilled, because the BC’04 campaign will feel great about an oversampled GOP poll, not a real reflection of actual voter thought (remembering of course the last Gallup poll before Election Day 2000….)
Must be “faith-based” polling . . .
This is not the first time that Republicans have cited Gallup as the authority. Dailykos has a broadcast e-mail from the Republicans that also relies on Gallup. Remember that Gallup is still building its models based upon the assumption of low turnout: 50-55%. This means that they take for granted a wildly successful suppression of the vote.
Let them go by Gallup! They did in 2000 and that’s why Bush and Rove were walking around like two peacocks as if they had already won. They slowed down campaigning at the end as well. I am afraid they are smarter this time but I truly wish they would believe the Gallup numbers for then there is absolutely no need for an October surprise since they have already won — right?
Wouldn’t surprise me: it fits the Administration’s delusional and sanguine view of the world and this election that runs contrary to reality. If you will New Jersey in play, it can be so!
Zogby has Bush with an approval rating of 44-46 %. Historically, this is bad news for the incumbent at this time. My hopeful hunch is that this election will mimic that of 1980. Carter and Reagan were in a close race, Carter had low approval ratings, and the undecideds did not turn until the last weekend. Watching the daily Zogby tracking polls – they don’t move much – I see the same thing happening. The polls will move Kerry’s way, but not until the last weekend. Karl Rove believes that Bush must be up by 4 points going into the last weekend in order to win. Historical trends are probably the best predictors at this point.
Amazing…
Well, I suppose that’s good news for us.
Would anyone take that comment seriously? I have a hunch he is just saying that because Bush is up in the Gallup.