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.
Speaking for the Illinois 10th, first term Congressman Mark Kirk would be the poster boy for Moderate Republicans. His equally centrist Democratic opponent 2 years ago, made them almost politically indistinguishable, in a close, but issues driven election.
This district is home to the affluent North Shore suburbs bordering Chicago, a natural constituent (and home to many employees) of the Chicago Tribune. Although the scandal torn state GOP is still under the ‘silent partner’ control of the Conservative wing – which solely can dictate the slating of Republican candidates – it is highly doubtful they would attempt to knock off Kirk in a primary, for obvious reasons.
Which poses a daunting dilemma for Democrats. They would be helped first, if they could possibly link Kirk in some way to the fringe element of the GOP, which is doubtful. Even if Kirk continues to support the Iraq Invasion, it is still not a liability. Because, many of these moneyed, Rockefeller Republicans held their noses and voted for Bush.
Which forces Dems to field a candidate with the gravitas of a Rahm Emmanuel, or dare I say, a Barack Obama.
By 2006, accountability will hopefully have caught up with the Bush administration, and some moderate Republicans may choose to insure he does no further damage by booting a likable sycophant.
History is important, but only to help learn what is needed to change the outcome the next time.
What you did in 2002 really isn’t that relevant if you want to win. Develop a new game plan. And start now to do what’s needed to win. I’m in MA and we’ve got a totally DEM Congressional delegation which is not at-risk for the foreseeable future. I’ve got the interest, motivation, and some resources, to direct toward turning Red House Districts Blue.
There must be hundreds of thousands of folks in the same situation. Mobilize them by turning each race into an Internet Drama.
I hate to say this, but the kind of thinking that you displayed in your post is what’s going to keep the DEMs in permanent minority status.
Stop playing Washington’s game and create a battle plan which can win in Iowa.
Iowa 1 and 2 will be in play only if the incumbents vacate the seats. Jim Nussle, House Budget Subcommittee chairman, is unbeatable–we took a shot at him in 2002, but didn’t even come close. He can bring home too much to the district, and he has a lot of support in the Dubuque area, where Dems would have to do well to win.
If Nussle leaves the House to run for Iowa governor in 2006, however, we would have a shot at that seat with the right candidate.
Iowa 2 is occupied by Jim Leach, one of the most liberal Republicans in the House (e.g. he has a pretty good environmental record, is pro-choice and voted against the Iraq War resolution). We took a shot at him in 2002 with a great candidate, but fell just short. He even carried the “People’s Republic of Johnson County,” home of Iowa City and the state’s most liberal voters. There are too many people who don’t understand that a vote for Leach is a vote for Tom DeLay running the House.
If Leach retires, this seat is very winnable–in fact, Dems would be favored given the way it is currently drawn. Otherwise, it will continue to be a heartbreaker.
It would be great to pick up one or both of these seats by 2010, because Iowa will lose a House seat and we need incumbents to have a prayer of winning one of the remaining four districts in the state.