When returns from RI last night began showing that Sen. Linc Chafee was winning his primary over conservative challenger Stephen Laffey, I bet more than one pundit arose from the sofa, cursing, and began rewriting a prepackaged column that paired Chafee’s demise with the Lieberman-Lamont primary in Connecticut as signs of partisan and ideological polarization.Perhaps some Republican chatterers will make the absurd claim that the results show the GOP is more open to centrist candidates than the Democratic Party. My colleague The Moose, an early riser, has already done a post offering a sunnier and more balanced take: Chafee’s win and Lieberman’s steady poll lead as an indie candidate indicate an appetite for centrist candidates across the board, with the different primary results being attributable to the ability of independents to participate in RI primaries. The Moose may well be right that Lieberman’s narrow loss in the August 8 primary would have become a narrow victory if indies could have participated; as always, close races make it possible to point to all sorts of different shoulda woulda scenarios (e.g., that Lieberman would have also won if he had foresworn a post-primary indie race altogether). But I wouldn’t overstate the “closed primary” factor. CT allows indies to switch their registration to participate in partisan primaries right up to Election Eve, and anecdotal evidence this year was that thousands of them were doing just that. But there’s a much bigger difference between the two primaries that should give pause to anyone making comparisons. Throughout the primary contest in RI, Republicans were deluged with polls showing Laffey getting absolutely killed in general election matchups with Dem candidate Sheldon Whitehouse; Chafee, while often trailing, was always close. That’s why national Republicans threw absolutely every available resource into helping Chafee. And by primary day, most of those voting for Laffey did so with an understanding that they might be tossing away a Senate seat at a time when Democrats were beginning to realistically think they could retake the Senate. In CT, by contrast, the implosion of Republican Senate candidate Alan Schlesinger meant that Democrats could cast primary ballots without any real fear of losing a seat. And that’s also why national Dems, even though most of them endorsed Lieberman in the primary, didn’t devote anything like the kind of effort on Joe’s behalf that GOPers made for Chafee (and why a lot of them who have since endorsed Lamont aren’t exactly kicking out the jams for him, either, given Lieberman’s pledge to stay within the Caucus if he wins). So I dunno if the two primaries can be accurately compared; there are too many missing links, or Lincs.
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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.