This weekend the mid-Atlantic and Northeastern states got clobbered with a major snow storm. I was luckily down in Central Virginia, and got to see the Blue Ridge beautifully dusted with powdered snow. And with most chores beyond feeding apples to the horses and seed to the birds snowed out, I read a lot. On Sunday morning, unable to get across the mountains to Grace Episcopal Church, I did penance by finishing Stephen Bates’ fascinating if painful study of the Anglican Communion’s rendering over the ordination of gay priests and bishops, A Church At War. Bates, a religion correspondent for The Guardian, does not pretent to be an impartial arbiter of the politico-sexual agony of Anglicans in recent years. He clearly views the whole crisis as having been engineered by conservative evangelical Anglicans, especially in England, who chose sexual issues as just another weapon with which to promote their quasi-fundamentalist drive for power in a faith community that has for centuries balanced Protestant and Catholic traditions and habits. Indeed, Bates almost certainly goes too far in suggesting that the African and Asian bishops who insisted on a condemnation of homosexuality at the Lambeth Conference of 1998 were just instruments of an intra-British ecclesiastical fight. But he knows the Anglican landscape well, and his profiles of the two unintentional protaganists of the current war over sexuality–the unsuccessful candidate for Bishop of Reading, Jeffrey John, and the successfully confirmed Bishop of New Hamphsire, Gene Robinson–are exquisitely wrought. As an Episcopalian, I also took pride in Bates’ argument that Americans handled the subject of gay and lesbian ordinations more honestly, and with greater theological depth, than their British counterparts. At a time when both the religious and secular conventional wisdom holds that conservative movements are the only vibrant and authentic trends in all the great faith traditions, Bates makes a strong case that the conservative ascendancy in Anglicanism is temporary, opportunistic, and ultimately incompatible with the future of the Communion. From what I know of Anglican Episcopalians, even those deep in the heart of Protestant Virginia, I think he’s right.
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Editor’s Corner
By Ed Kilgore
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June 25: John Roberts’ Path Not Taken on Abortion
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.