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.
We have seen extreme views on the importance of the “moral values” response to an Exit Poll question. At first it was touted as the main explanation for Bush’s victory. Then the question itself was blasted as poorly framed and practically worthless.
In fact, the question was a useful one for identifying a large and important component of Bush supporters, though it probably did not make the difference between 2000 and 2004, which was largely due to Bush’s connection to 9/11 and fighting terrorism.
But criticisms of the question as invalid miss the mark. It not only showed a large difference between Bush and Kerry voters in the main exit poll, but it did so in a comparison of open and closed questions in a Pew post-election poll, so the original finding was not just a function of question wording. Moreover, the claim that “moral values” was not an issue like the others asked about is incorrect. Was “terrorism” really an issue on which the two candidates differed? Hardly. What the choice of “terrorism” by Bush voters indicated was their view of character: Bush as a strong leader, just as moral values also was taken to indicate character, Bush as a faith-based President. Neither response was an “issue” in the sense that taxes was an issue.
Competing in terms of “moral values” will be important for a future Democratic candidate.
We have seen extreme views on the importance of the “moral values” response to an Exit Poll question. At first it was touted as the main explanation for Bush’s victory. Then the question itself was blasted as poorly framed and practically worthless.
In fact, the question was a useful one for identifying a large and important component of Bush supporters, though it probably did not make the difference between 2000 and 2004, which was largely due to Bush’s connection to 9/11 and fighting terrorism.
But criticisms of the question as invalid miss the mark. It not only showed a large difference between Bush and Kerry voters in the main exit poll, but it did so in a comparison of open and closed questions in a Pew post-election poll, so the original finding was not just a function of question wording. Moreover, the claim that “moral values” was not an issue like the others asked about is incorrect. Was “terrorism” really an issue on which the two candidates differed? Hardly. What the choice of “terrorism” by Bush voters indicated was their view of character: Bush as a strong leader, just as moral values also was taken to indicate character, Bush as a faith-based President. Neither response was an “issue” in the sense that taxes was an issue.
Competing in terms of “moral values” will be important for a future Democratic candidate.
The point about the moral values issue is NOT that it led to a wholesale win by Bush. Rather, the issue motivated people to come out who would not have come out otherwise. Remember, the election was close. A small increase in turnout was all that was needed.
If it motivated an additional 20,000-30,000 to come out, that would be important.
Martin – One answer to your lead-off question is that the largest demographic gain for Bush over his 2000 count was white women. He added about 4 million white women voters to his 2004 popular vote total, which is one way to explain his margin of victory. Other recent studies suggest that these were mostly married women. It would be interesting to know the class breakdown of these women and to get some idea of the issues that motivated them.
I second Mark Fine’s request. Tell us, if it wan’t the Jesusland people who put Bush into office, what crazies did so?
I admire and respect Ruy’s statistical analyses, but I think maybe the Democrats have gone a little overboard in looking at statistics. The same set of statistics can yield a dozen sets of conclusions.
I believe the definitive study that needs to be done will ask a lot of people these questions to gain some valuable qualitative data: did you hear Kerry’s message, did you understand his message, did you believe his message, and if you did all this, was that message or was it not important to you? Why or why not?
I simply cannot understand how rational people could vote for a man who has not really done anything to reduce tensions (he has played upon them and, if anything, increased them), improved the economy, brought any noticeable compassion to his task as he said he would, or been the “unifier” he said he would be.
Does this mean about 50% of the electorate is NOT rational? The explanation of the evangelical and theocon votes going to Bush, blocs that are not necessarily rational or pragmatic, made for a very pat explanation. If not that, then what was it?
Get that study going, somebody.
I think that the backlash against the moral values thesis has been too extreme. “Moral values” is ambiguous, of course, but the fact of the matter is that President Bush received 80% of the votes of the 22% who said that moral values was their most important issue. That suggests that a sizable number of voters interpreted moral values as meaning gay marriage, abortion, etc.