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.
Oh! people, Kerry did not lose CO by 5% points. The vote was stolen! It is alled Voter Fraud and American needs to undestand that it happened in Colorado too!
I would not be surprised to see Ken Salazar of Colorado in the VP slot in 2008. A former Attorney General of CO and newly elected senator, Salazar is just what the party needs. He would, of course, help excite the Latino community-particularly the Mexican and Central and South American communities-but his appeal goes far beyond that: A farmer who appeals to the populist leanings of the west, Salazar is far removed from the “liberal” and “elitist” northeastern political environment. He has a gentle ruggedness that appeals to people and he exudes sincerity. He is considered, for the most part, a moderate BUT HAS taken some pretty strong stands on the environment and farmers’ rights. He is pro-choice but strongly opposes PBAs and strongly favors parental notification of minors who wish to terminate a pregnancy. He has stated that though he believes marriage is between a man and a woman, he will vehemently oppose any effort to amend the constitution in this matter. The voters of CO knew all this when they selected him on Nov 2nd.
Whereas Kerry lost CO by 5 points, Salazar beat Coors and won his senate seat by 6 points! Both Kerry and Salazar did very well in the large cities like Boulder and Denver but Salazar did far better than Kerry in the smaller towns. He bested Kerry by an average of 10 points in many of these towns. He still didn’t beat Coors in these small towns but he did better than any Democrat there in recent history. Ken’s brother won his house seat as well. In fact, in a bright spot for Democrats in this election, CO Dems took control of both state legislatures for the first time in 44 years!
Something is happening in Colorado and I think the Coloradan Democrats can teach the Democratic party a thing or two on how to win elections. I think the national party should take a close look at how the Democrats in CO have turned things around and see what can be applied nationally.
I really like the quote in the article:
Colorado Democrats say their success carries a lesson for the national party. “We campaigned on pragmatism,” state Democratic Chairman Christopher Gates said. “We set ourselves up as the problem solvers, while the Republicans were hung up on a bunch of fringe social issues like gay marriage and the Pledge of Allegiance.
“The notion that moral issues won the 2004 election was disproven in Colorado,” Gates continued. “We offered solutions, not ideology, and won almost everything.”
Liberals used to be known as the pragmatists of American politics, the problem solvers. Being known as a liberal bacame a liability in national politics (as both Mr. Bush and Mr. Kerry clearly believed in the debates) when liberalism became an ideology rather than a way of thinking about problems.