This is in many respects the most ironic of American holidays (with the possible exception of the orgy of consumption commemorating the birth of that preeminent anti-consumer, Jesus Christ). Established to honor those fallen in war, Memorial Day has become a signpost to the advent of the langorous season of summer, marked by such un-martial and non-sacrificial past-times as beachcombing and barbecuing. Certainly some have argued that these activities are among the blessings of liberty and prosperity for which American soldiers, sailors, airmen and marines have sacrificed. But that’s too easy a rationalization, much like George W. Bush’s injunction after 9/11 that Americans could best fight terrorism by shopping and traveling.Many of us have reason on Memorial Day to remember family members of the distant or recent past who have died in combat. And all of us should spend at least a few moments thinking about the countless, often nameless young men (and increasingly, young women) who were sent into the shadow of the Valley of Death on our behalf, and never came back.But we should also think about the responsibility we have as citizens to make such journeys uneccesary: to create a world where young people don’t have to go into strange lands and enter the ultimate lottery of random injury and death, usually at the hands of enemies they hardly see.Those of us who are indifferent to politics and civic life should reflect on the simple fact that virtually every war reflects the failure of politics and civic life; the breakdown of peaceful arrangements painfully developed over time; and the incompetence or ideological excesses of politicians on one or both sides of most wars.I won’t go into a long history of modern wars, but think about this:The deadliest war in American history was the Civil War, which was touched off not by impersonal forces or irrepressible socio-cultural conflicts, but by the self-absorbed idiocy of a few hotheads in South Carolina, drunk on the prose of Sir Walter Scott, who dragged their region and ultimately their country into a battle over the doomed and evil institution of slavery.And the deadliest World War (at least for combatants), World War I, was a maddeningly pointless war caused by the incompetence of politicians and diplomats who developed a pattern of alliances that gave a handful of Serbian nationalists and Austrian militarists the ability to pull five continents into the trenches.The great military strategist Clausewitz once memorably defined war as “politics continued by other means.” A better definition would be that war is the failure of politics continued by other means.So as we honor those who have died for America in good and ambiguous wars, for clear and hazy purposes, let’s remember this: we owe each and every one of our fallen heroes, and those we place in harm’s way today, a politics aimed at making these sacrifices less numerous, and at reducing the sway of homicidal folly in the politics of every country on earth. That may well mean a more active and even militant U.S. foreign policy. But it definitely means we must, in honor of our heroes past, present and future, remain vigilant against the folly that great superpowers so often embrace.
TDS Strategy Memos
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By Ed Kilgore
In looking at Dobbs v. Jackson Women’s Health Organization from many angles at New York, one I noted was the lonely position of Chief Justice John Roberts, who failed to hold back his conservative colleagues from anti-abortion radicalism:
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.