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 agree that this is unacceptable, yet it is not surprising. The old Democratic establishment does not want to reform its party “from the grassroots down” because they would loose power. The people would be in control, not the McAuliffes.
More here: http://www.politicalthought.net
With his habit of hurling epithets like “Republican lite,” Howard Dean is the best prime example of somebody who (in Nick’s words) “is deeply invested in restarting the DLC/liberal food fights” and would therefore be part of what Nick calls “the rump establishment.”
Dean has done much at the grassroots level and has much to contribute to the party, but he is far too polarizing a figure to be a plausible candidate for DNC chair.
It’s not a left-right thing really … what does that mean anyway? There are probably some “right” things that I could get behind. From where I am, a blue area in what once was a blue state, the party needs to remember its real roots — the people. Those inside the Beltway haven’t a clue, and because of that all they manage to do is try to emulate Republicans. Well, I’m not a Republican. And if someone doesn’t take this party away, far away, from that, I’d say it’s time for a true third party. Read Adam Werbach’s Nov. 3rd Theses (http://www.3nov.com/images/Nov3Theses_letter.pdf) for an idea about that. And forget about any nudges to the center. The party has gone too far in that direction already. And you know what it says to voters when one party keeps trying to look like the other party? That the other party’s right. And it’s not.
To me it’s completely about wresting the party away from the corporate/beltway leadership and building a grassroots party. That’s why I think Dean, Ickes and Rosenberg are the only acceptable candidates.
But really, I don’t think that there is any question that it should be Dean.
Except for being prematurely right about Iraq and bold about his criticisms of the Bush administration, Dean is not particularly liberal. He was part of the DLC at one point. It was however, his strong criticisms of Bush that got the Dems back in the race.
In this last election most of the volunteers on the Kerry campaign started in the Dean campaign. When his candicacy tanked, Dean started DFA, the organization raised $5 million contributed to over 700 candidates up and down the ballot and made a difference in some long shot and pivotal races.
What did Leo Hindery do in ’04? What did Wellington Webb do?
Moving left or right could pull in some swing voters is the classic political theory. But it’s wrong, most people are just not ideological. More important to the vast majority of people is: Does this party or candidate really stand for something? And that’s what Bush succeeded on making the election about: And more people thought they knew where Bush was coming from.
What the Democrats failed to do is to position the central question as simply: Does this guy have any clue about what he’s doing?
Those are the simple things that most people vote about, not ideological tests. And focusing too much on ideological tests detracts from the clear message on other items.
So definitely the most important thing is to stand up for something. That to me is the core problem right now – can one point at anything which the Democrats have stood their ground on in the past 4 years?
First , Kerry did not lose…the election was stolen through frudulent manipulation of the electronic voting system.
That said, Howard Dean is the only possible person to lead the Democratic Party.
We do not need to move ANYMORE to the center. The Democratic Party is already Republican lite!!!
It has to be Howard Dean…there is no one else articulate, passionate or honest enough. All this pontificating is diplomatic and appeasing but too corporate!
I agree with Nick Confessore that this is more a battle between an entrenched establishment and reform forces, with both sides having their fair share of both liberals, moderates and even a few conservatives.
Where I disagree with Confessore’s opinion is his suggestion that it is the OUTSIDERS, the REFORMERS who want to make this a battle about ideology. That may have been true a few years back, but my experience in the Dean campaign has taught me that the #1 reason people got involved in that effort was because they were sick and tired of Democrats rolling over every time the Republicans or the establishment media barked.
It had nothing to do with ideology and everything to do with testicular fortitude.
On the other hand, we have people like Al From and Peter Beinert who continue to frame the debate as one about ideology, as if they are the great defenders of the Democratic big tent against the crowd of pitchfork wielding radical lefties.
I suspect this may have something to do with where both Confessore and I are coming from. He is closer to the insiders than I am, so he can’t see what is so painfully obvious to us out here in the “heartland”.
“Pretty much anyone who is deeply invested in restarting the DLC/liberal food fights is by definition part of this rump establishment, since the distinction of vision between Democratic centrists and liberals pale next to the differences between the Democratic average and the Bush-era conservatives.”
I disagree. There a fundamental differences between DLC and progressive Democrats over, for want of a better term, economic populism that goes to the core of the party’s beliefs. While I would not dispute the need to shake up the party’s beltway establishment, that pales in the face of resolving what the party stands for.
I also thought the TAP piece presented a caricature of progressive Democrats, then and now. Gee, I remember when TAP wasn’t trying to emulate TNR’s rush rightward. Now with such items as this Tapped piece and the presence of people like Matthew Yglesias, I’m beginning to wonder.
Lead, follow, or get out of the way. From where I was working (for the first time ever, in a very red Florida county) all of the leadership and most of the effort came from DFA and MoveOn. I am shocked and infuriated that Kerry lost, that the entire national slate was beaten so badly, with a few brilliant exceptions. When someone suggests Joe Lockhart for chair, I want to scream.
. Top-Down or Bottom-Up .
I think that in addition to the Liberal/Dino conflict and the Washington/Heartland struggles there is the Top/Bottom struggle.
In the past the parties have been lead by the people on top, but with the Dean/Trippi group there was the start of a leadership from the Bottom. Many of us in the Virtual community are starting to suggest that it is possible to have a party that interacts with us rather than just uses the WEB as a way to gather money and foot soldiers.
It may be that this time the struggle for the DLC leadership is between those who want a classical party structure and those who whould like to explore if the party can really be organized as a Bottom-Up representative group.
If the Bottom-up’ers are represented then perhals we can develop the tools, community, etc. so that we can really separate the CORE democratic/progressive/populist… issues from those that are desirable or wedge issues, and then ofcourse proceed to properly frame/communicate these to the people who also believe in them.
It is hard not to come across as a sychophant, great post Ruy, I wish this could be fed into an amplifying circut.
I can’t say I agree. Since we live in an age where just a slight nudge to the center on a few key issues (partial-birth abortion? terrorism? gay marriage?) could mean the difference between getting a Democrat elected–both as President and to Congress–those small policy differences between Democratic centrists and liberals become very much personified, though they pale materially in comparison to the average Democratic views the Bush-era conservatives. Love the site and the book. thanks.