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.
So when will the exit polls finally say that Bush lost?????
(and what Joe said above)
Joe: That’s easy. For one thing, the Hispanic vote wasn’t as large as billed but it was still a gain for Bush — same with Catholics.
More importantly, Republican and conservative turnout was way up, women voted much more Republican, and upper income people both increased their turnout and voted more Republican.
There you go, Joe. The mystery of Bush’s 3 point margin all cleared up!
You know, Ruy did explain that one (look for his immediate post-election posts): we got absolutely hosed among non-college whites (evangelical and otherwise), who broke Republican more than they have before, and we didn’t improve our national performance among Latinos (although we did improve in NDN-targeted swing states like CO and FL). We need to become competitive again among non-college whites outside the Northeast, so that the “southwestern strategy” doesn’t become our only possible path to 270 next time out. And we need to improve our Latino performance, rather than patting ourselves on the back because we’re not slipping all that much. Ruy and almost everyone else here know all these things already. (Simon Rosenberg knows them backwards and forwards, which is why he’s my pick, right now, for DNC chair.)
I’ve always suspected that the hispanic vote was less Republican than those early polls showed. And looking at the county results, they aren’t significantly different than the 2000 results; in Texas, Kerry gained about 1 percent from Gore’s Texas numbers, and Bush improved by about 1.5 percent. Only a handful of counties changed sides, mostly a few western counties switching to Bush, while Austin’s Travis County switched Democrat.
And to answer the question above, the black vote is only about 19 percent of the national vote, at most, and the hispanic vote, while about the same, is not as monolithically Democrat as the black vote. Hispanics in 2000 favored Gore, true, but 1 in 3 voted Bush, while less than 1 in 10 blacks voted Bush in 2000.
The evangelical percentage for Bush was the same, but the actual number of evangelicals voting was slightly higher. Statistics can be so slippery!
And the Catholic vote was still 50/50. Frankly, I’ve always thought that it was odd to still treat as broad a religion as Roman Catholic as if it were a monolithic group. To use an anecdotal example, one of my friends is a white pro-choice Catholic Democrat, and another is an asian pro-life Catholic Democrat. One is from VA and one os from OH. All they have in common is that they got baptised the same way. I think it’s time we stopped calling “Catholic” a group the same way we call races groups.
Does this mean that Bush catered to the wrong folks with his Commerce and AG pick??
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1. Re Ruy and Steve — as I understand it, the state exit polls and the NEP are separate and autonomous; as such… while one can be used to call into question the other, I don’t understand why changes in one mean that the other number, reliable or not, is to be altered commensurately.
2. Joe — because white married Protestants without college degrees are both numerous and shifted really strongly against the Dems.
And because we ought to remember that going from +0.5 to -2.8 – the Dems didn’t do THAT much worse.
Maybe those nomination announcements were made a bit prematurely… A.G. Gonzales and Commerce Secretary Gutierrez’s days may already be numbered.
Ruy: Can you please explain how,
if the Hispanic vote wasn’t as high for Bush as previously thought,
if the African American vote still went Democratic,
if the Catholic vote for Kerry wasn’t as low as it was thought to be and
that the Evangelical vote for Bush wasn’t measureably higher than 2000,
how, in 2004, did Bush win and Kerry lose?
I’ve been saying this, the future of the Democratic land base lies in the Southwest, not the Southeast. New Mexico, Nevada, Colorado, and eventually even Arizona will come our way. Many years from now, even Texas may become a swing state.