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.
Mark makes an interesting point, but I must defer to the key argument of the original piece: “State laws restricting felons from voting should be scrapped because the technology is not available to generate fair and accurate felon lists. As long as felon lists are inaccurate, innocent people will be denied the right to vote because they have the bad luck of having the same name as a convicted felon.” That is a powerful argument.
Another argument for restoring the right to vote to felons that have served their time – as decided by the people – is that felons are still required to pay taxes and abide by the laws of the land. As a former resident of Washington, DC, I am reminded of the 1990’s license plate: “Taxation without Representation” (tellingly, this tag was on the Clinton presidential limo but immediately removed as soon as Bush entered office). If we expect that felons will pay taxes and (hopefully) follow the law, then they should be given the right to decide, though a vote, which lawmakers are in power to make these laws.
But, no matter what side of the fense one is on, it can’t be disputed that the current policy must be reevaluated and become uniform at the national level. The right to vote is a national right and should not be left to individual states to decide. The current process leaves the door wide open for intentional and illegal abuse by those in power at the state level. A national policy would be more transparent, accurate, and fair.
This _IS_ exactly what the Democratic leadership is missing about the vast American Middle. It appears that the Democrats are pandering to convicted felons (many or most of whom deprived other Americans of their rights and are there fore where they deserve to be) for their votes just to gain power for the sake of power.
Most opinion polls would depict that the majority of Americans believe in fairness, but also in law and order. They go to work every day without stealing or harming their neighbors, and raise their families to do well in the world. The Felon Vote is the antithesis of middle America and its values.
If the Democrat leadership focused as much attention on Working America as they due on justly convicted felonss, they might actually win back power, and then be in a position to herald in some needed changes, but not if they keep courting felons.
What good is it to gain the votes of justly convicted felons, only to lose the massive voting power of law abiding middle america?