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.
Maybe the trouble is that people like me just aren’t really democrats anymore.
I always felt the war was wrong and took a lot of grief from my neighbors in a very conservative neighborhood for opposing it. (Those same neighbors now agree with me). I cringed as I saw democratic congressional members abdicate their responsibilities and rubber stamp the President’s insanity.
I believe in plurality. The IRS doesn’t care if I believe in God. They don’t care if I’m straight or gay. They don’t care if I’m black, white, hispanic or other. They want my money so that our government can provide the services we have said we collectively want and need.
I don’t think my tax dollars should be spent on a lot of things – but I don’t try to hold other people hostage with my views. Texas shows us clearly that abstinence only does NOT work well as policy- yet tax dollars continue to pour in for this. Programs that include information on and access to birth control DO work better statistically — yet, because the christian right doesn’t want to accept that mary is having sex – even more of my tax dollars are wasted.
Who is not afraid to speak for me on this? One of the department of education secretary’s first acts was canning an episode of a pbs show (whose mission is to portray DIFFERENCES among people and places) for having the audacity to show lesbians in vermont. What on earth kind of country is this becoming? No Child Left Behind is so grossly underfunded that children aren’t being educated yet the secretary focuses on this. And let’s remember that some of us don’t want our children exposed only to wonder bread.
The Democratic party has lost it’s rich language and diversity. It hides under the covers and has become the party of apologists and poll jumpers. I know where I stand. I DON’T know where the party stands anymore.
I’m not afraid to say I believe access to affordable healthcare should be a basic human right in this country.
I’m not afraid to say, “BAD DEAL” on the President’s crazy Social Security scheme. My mother lost almost everything when the market crashed – HELLO, people may be savvy investors when young but when their health fails, they AREN’T and then their children are left in horrible positions. So WHY don’t I hear this from the party?
I’m sick of the party’s self obsession w/itself. We’re getting killed out here and if the democratic party can’t off the therapist’s couch and take a stand, there won’t be a party left because people like me will leave and create a political voice that speaks for us. And if some want to call that suicide, I’d be interested to see what they’re calling right now.
1. Its not just Iowa, standing alone, that is the problem. It is Iowa, combined with the front loading of the primary process that allows a candidate to coast to the nomination (as both Gore and Kerry did) merely on the strength of Iowa and NH.
A process that worked, by contrast, is that of 1992: Iowa and NH had some winnowing effect, but a candidate who lost Iowa and NH could still win the nomination in the South.
So to get an electable candidate, the Democrats need to somehow create a process that gives the South a decisive voice. Ending the “Iowa first” policy is one way to do it but not the only way. If the Democrats can space out their primary process to reduce the influence of the first few states, that works just as well.
2. The notion that John Kerry is a “centrist” shows how utterly out of control the Democrats’ left wing is. Kerry was not a flamethrower- but he did have a solidly liberal record. To draw an analogy to the Republicans: he may not be a Tom DeLay, but he is certainly no different from a Bill Frist- someone who robotically votes the party line, even if he does not go beyond the party line. Between 1999 and 002, Kerry’s ADA rating (adaction.org) ranged between 85% and 95%.
And because Kerry (a) is from Massachusetts (unfortunately a handicap) and (b) has a 20 year voting record, he is perceived as more liberal than a Southern governor with identical issue positions would be.
3. The notion that anyone to the right of Kerry is comparable to a Democratic version of Charles Mathias is also rubbish. Joe Lieberman, the alleged conservative in the Presidential field, has had an ADA rating over 75% for each of the past five years.
4. Finally, the notion that the Democrats just need to “be Democrats again” overlooks certain historical realities.
Since 1968, the Democrats have only elected two presidents – both Southern governors who managed to be perceived as moderates.
When the Democrats nominated northern liberals, they lost again and again. Lost with Humphrey. Lost with McGovern. Lost with Dukakis. Lost with Mondale. Lost with Kerry. What part of this don’t you understand?
The problem with the recent Democratic candidates (and indeed, with the party in general) is not that they are too liberal or not moderate enough, it is that they are simply Republican-lite (or Bush-lite, if you prefer). In the 2000 debates, Gore agreed with Bush on nearyly every issue. In the 2004 debates, Kerry’s nuanced points on the most important issues (national security and Iraq) were so subtle that only the pundits could decipher the differences.
Democrats have to stop worrying about offending some “on-the-fence” voters and trust that by offering an obvious alternative, they will gain many more swing voters than they will lose. The fact is, the only way for the Democrats to get back in the ball game is to take off the Elephant coat and start being Democrats again.
Why on earth do Democrats continually talk about the need to nominate “centrist” democrats, which in the current political climate can only mean DINOs (Democrats In Name Only). If Joe Lieberman or some other conservative war hawk were nominated neither I nor millions of other democrats would bother to vote. What’s the point in trying to elect Bush-lite? If people support the Republican position on issues then they vote Republican. They don’t want an imitation “me-too” Democrat who doesn’t know where he stands.
Bush gets millions of votes from people who don’t even agree with his positions on issues – because they believe he’s solid and firm and they know where he stands, and that he’ll follow through on what he believes. This election proved that being strong and wrong is better than being perceived as wishy-washy and right.
You never see the Republicans rolling over and becoming liberals when they lost elections! We need to have the moral courage to stand up and say “this is what we believe and we’re not changing” to provide a real alternative to the slash and burn politics of the right. Otherwise the Democratic party might as well change its name to the Whigs.
“Finally, Howard Dean’s collapse in Iowa in 2004 was due in no small part to widespread concern among Democratic caucus-goers that Dean’s strident anti-Bush and anti-war rhetoric would make him unelectable in November.”
Funny thing about that, Ruy… It would be nice to see some figures on just how large the “no small part” was for this effect. You’d have to admit we were also told ad infinitum that it was really because of all the orange-boarded Dean outsiders who flooded the state, and after all, who’s to tell Iowans what to think? Point is, has anyone conclusively determined why Iowans rejected Dean in favor of Kerry?
Joe Lieberman is a centrist?
Anyone reading Iowa should discard the 2004 election. The Iraq War and 9/11 made this an unusual election. The judgment of the Iowa caucuses, and Democrats generally, was that the party could not nominate an anti-war candidate, that doing so would be construed as anti-patriotism (see Bush v. Dukakis) and weakness (see Nixon v. McGovern).
In this the Iowa Democrats were almost certainly correct. An anti-war nominee would not only have had to run against Hyper-Patriot Republican propaganda and the steady War Drums from the corporate press/media, but also the deeply embedded belief of the overwhelming majority of Americans in the “rightness” and effectiveness of American military power.
A large majority of Americans, without consideration of any facts at all, will support any use of military forces and call it patriotism. Anyone who opposes or even questions the use of military forces is immediately branded as unpatriotic.
This is not uniquely American, but it is an American problem because of America has a awesome military power and there are no outside restraints on its use. The invasion of Iraq, like the Viet Nam War, has almost no support outside the States, but there is really nothing anyone outside the States can do to restrain the use of American military forces.
Oh good grief. John Kerry not a ‘centrist’? He was nominated *because* he was a centrist, and his military record was thought to give him security cred.
Though I hope the Dems find more electoral success than they’ve had recently, I have to agree with Eugene Debs (who, granted, was not known for his elector success) that “I’d rather vote for something I want and not get it than vote for something I don’t want, and get it.”
I was willing to give Beinart more benefit of doubt after his initial post-election blatherings, but this is approaching the silly. First, as Ruy documents, his argument has the disadvantage of being false. But, second, it appears Beinart truly believes there’s some prospect of a Joe Lieberman ever getting the Dem presidential nomination — which is akin to a Republican in 1977 hoping for Charles Matthias in 1980. The party is no longer McGovernite, but it’s never going to be Sam Nunn, either (if it ever went that direction, the Green Party would overnight become a real factor in electoral politics).
Beinart ought to note a few things. First, Clinton’s success was not (as some at the New Republic like to believe) a matter of dissing the left wing, but of making all wings of the party feel part of the coalition. The sort of candidate Beinart craves would have a VERY difficult time doing that. Second, Kerry — who, by his lights, was a marginal hopeful — came within a hair of being president. Just as voters by 1976 were showing far more propensity to vote conservative than they had been just a decade earlier, so voters now are far more disposed to a “Massachusetts liberal” than they had been ten years back. Democrats have been GAINING with voters, not losing (even ’04’s bare tick backward came more from incumbency than ideology). Finally, the GOP faces major challenges in the four years ahead, with the war and the economy seemingly headed relentlessly toward nasty outcomes. A Democratic party that was barely defeated in 2004 looks to be sitting pretty to reap that whirlwind. Starting stupid intra-party fights (something even the DLC for once seems shy about) is counter-productive, and likely irrelevant.
Could Kerry have won Iowa had he (and Edwards) voted for the “$87 billion”? It would seem that they believed they couldn’t. The nature of the caucuses forced a symbolic vote that (in Rove’s words) was a gift that kept on giving to the Bush campaign. The type of committed activists that are likely to participate in the caucus system are also the ones least likely to put aside ideology even when it forces suicidal actions.
Republican control of the White House and Congress will allow the timing of votes to their advantage anyway. Why pepetuate a system that makes that easier?.