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 think your critique is only a partial picture of the Netroots. I am both a member of the Netroots and a member of the Democratic establishment (working on campaigns since 1996). It is not that the Netroots expects ideological purity, but it does expect Democrats to stand up on important issues. For instance, I think few people believe that the Democrats who voted for the Iraq resolution were fooled by bad intelligence or thought that Iraq was really a major threat. The problem for me is not fighting a war, but not taking a principled stand on an issue of the greatest importance for our country.
I consider myself a hawk and in the lead up to the war I could think of many greater threats than pre-2003 Iraq. I thought (and still do) that North Korea, Iran, Syria, Pakistan, Saudi Arabia and Al-Qaeda were all much greater threats. Unfortunately time has shown that invading Iraq was not in our interest. I just wanted a Democrat to stop cowering and say just that: Invading Iraq is not in our interest or let’s get Bin Laden.
What is the point of having representatives if they will not risk their office and power when issues of highest national importance are being debated? What is the point of power if you do not use it to protect your country in its time of greatest need?
The Netroots just wants politicians to fight for what is right, to be a little better. Many members of the netroots maybe Liberal, but so what, being Liberal is not a bad thing. Both parties live and die by their ideological bases. The Netroots supports conservative Democrats when that is the only viable option. That is what got Lieberman in trouble. If he were from Montana, most of us would accept the political reality and support him, but he is from Connecticut. Democrats do not have to hold their noses in Connecticut…
There seems to be a flawed conflation of data that is being used by many to discount the significance of this particular argument. Time and again I see the citation that contends that because a majority of Americans favor a withdrawal from Iraq (the latest data shows that a majority of Americans favor a withdrawal within a year), the netroots is therefore ideologically aligned with mainstream Americans. That conclusion ignores data on the left / right make-up of the voting public.
The problem is that the sentiment on the war cannot be extrapolated to conclude that a majority of Americans are aligned with the netroots…it is merely a measure of disfavor with the war…but cannot be concluded to be a fundamental leftward voter shift. It may happen in the future but the current data doesn’t support that reality.
The “Hillary Meter”, an ongoing Rasmussen survey that gauges her proximity to the center point of voter left / right sentiment demonstrates that she remains notably left of center. At the same time Clinton is seen to be a DLC centrist and that puts her too far right for the netroots. Therefore, one cannot reasonably conclude that the majority sentiment on Iraq…despite the fact that it coincides with netroot sentiment…will translate into a netroots defined Democratic voter majority.
read more observations here:
http://www.thoughttheater.com
I think the netroots comparability with the larger population of the Democratic party will become apparent during the primaries.
I predict Feingold won’t be much of a player as a candidate, contradicting his very high support in the netroots. And the eventual winner, whomever that is, will at best be a 2nd or more likely 3rd favorite of the netroots.
This will answer a lot of questions and focus many minds.
Hello Scott,
I read you piece in the American prospect. You are correct in your findings that netroots readers are overwellmingly liberal.
Where I disagree with you is that this will force that Democratic Party to chose an overwhelmingly liberal Presidential candidate.
You overestimate the ideological rigidity and underplay the pragmatic flexibility of the liberal activist. Netroots people are fully aware that the most liberal guy will not always make the cut or win out and we are willing to work with that. What we also know is that America can not get back to the center unless there are liberal positions and truly liberal candidates to compromise off of. You see, in the far right environment we are in now, you can’t get to to center by just picking the center, you need to push to the left as much as possible and then tack back to the center as little as possible just to end up a little bit less to the right then we are now.
It’s about making the political environment safe again for liberals so that we can have sensible politics again, and we really wish centrist strategists would begin to understand this. When you shoot at the left you blow up the center.
I think that you want to have it both ways. You admit that the “idealogy” of the netroots has only two real components: opposition to the Iraq war and anti-corporatist populism. Everything else is optional, depending on the situation (even reproductive freedom; see Casey in PA). While you criticize “liberalism” as being unpopular, you don’t really address whether the populist anti-war position also unpopular.
If polls give any hint, I think you are wrong, and the netroots idealogy is broadly popular. People don’t like the war and they don’t like legislation that amounts to corporate-friendly give-aways. Tell me, why isn’t that a winning position?
Aren’t you ignoring, in your piece, that the race in question occurs in CT?
Beyond the fact that there is no sillier model than the median voter one… shouldn’t liberals have different standards re ideology on the basis of the state in question?
Lieberman is to the right of his Republican predecessor; that’s… odd, esp. in a state that has become more Dem in Presidential elections since 1988, not less.
Additionally — where was the analogue GOP anguish re PA 2004?
Scott –
From reading your article, I think it would be useful to distinguish between two groups: (1) the political junkies that read and comment at liberal weblogs; and (2) those widely read hosts of liberal weblogs that are also active in Democratic political circles.
As to the former, they are what they are, and the rise of the net has probably only broadened the awareness of, and ability to communicate with, each other. You need to mobilize them to vote for you in elections but, as a candidate, you may not want to emphasize every one of their preferences (hence, no Democratic running on a pro-conscientous objector platform). Nothing new there.
Given their wonkishness, you correctly assess that they would much rather engage in a debate over the merits of a particular issue (e.g. universal health care) and formulate a strategy to successfully advance that issue. Conversely, they tend to be critical of unprincipled pandering (see H. Clinton – flagburning).
Their loyalty to the Democratic Party relies on the Party being able to advance these interests. When Party leaders are seen as compromising liberal interests, disappointment and criticism will ensue. In this regard, they are no different than so-called centrist Democrats (would the New Republic become dovish in the Middle East if polls showed it was crucial to a 2008 victory?).
Similarly, free-market conservatives and values conservatives seem to speak out when they feel elected Republicans are ignoring them, Reagan’s commandment notwithstanding.
It really seems you are putting forth an argument to marginalize the second group – the bloggers becoming influential in Democratic political circles. Maybe you are right that they should not be managing campaign strategy. However, they are still going to be making their arguments for thousands and thousands to see. So, you are still going to have to roll up your sleeves and engage them.