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.
My memory of Rubinomics associates it with bringing down the interest rate and reducing the deficit, rather than free trade. This apparently has changed in the post-election discussion.
The benefits of free trade have not been shared, no doubt. The “free” part has been taken by opportunists to mean free from the need to share gains or mitigate pains. Populists are right to shut down the store until accounts are set up correctly.
But the other side of Rubinomics is no less difficult. Getting the budget under control. Debt service and the retiring baby boomers are going to set up an impossible situation. Remember, off-the-books borrowing from Social Security and Medicare funds is not only going to stop, but will need to be reversed simultaneous with the ballooning debt service.
Clearly fiscal responsibility means revenue increases. Tax increases? Not on the middle class. That is the Democrats bargain with the voter in the past election. And we’d better not renege on that. The 1994 election, if you’ll recall, was demagogued by the Gingrich and the Republicans using very meagre tax increases.
Where then? I’d like to see somebody else’s ideas. I would first end the cap on payroll taxes. This would have the effect of increasing the top marginal rate by 16% or so for earned income, earmarked for the entitlements that will be needing it.
Symbolically, it might be neat to institute a new top marginal rate of 80 or 90 percent on income over $3 million.
An idea that is not mine, but I forget where I saw it, was to get rid of all the income tax deductions and credits and bells and whistles in favor of five: children, pensions, health care, education, mortgages. This might net the most, while holding the middle class harmless.
“Taxes” won’t be such a dirty word if it is applied to the other guy.
“Free” vs. “Fair” Trade
As the Rubinites and the economic populists square off on a number of issues which includes the free versus fair trade debate, the narrow use of the term “fair” trade by some Democrats borders on a disguised and thus disquieting form of rank economic nationalism.
Free trade is not fair trade when our government, thanks to powerful and well-heeled lobbies, refuses to couple “free” trade with the abolition of the patently inefficient subsidization of cotton, wheat, and sugar production in this country, among other such supports. These subsidies underwrite a monied elite while increasing the price of these products for consumers, not to mention the denial of economic opportunities for foreign workers. (Here in Florida, for example, we not only subsidize “big sugar” and thus pay more for our sugar, but we also subsidize their cost of doing business by using tax dollars to clean up their despoilment of the Everglades.)
An example of this “fairness” is reflected in the draft free trade agreement with Peru. As drafted, its implementation would demolish the Peruvian wheat, cotton, and sugar industries, for even with their lower wage rates, they cannot compete with the artificially supported low prices for these products.
Some Democrats are calling for better labor and environmental laws and their enforcement, which in Peru’s case could be strengthened, but this call is being made without any discussion whatsoever of the “unfair” destruction of three Peruvian industries.
The money we waste on welfare for industries that don’t need protection could be better spent on the social nets necessary for a fair trade driven economy.
In short, if the economic populists are going to argue for fair trade then they should use that term consistently to apply not only to our trading partners but to ourselves as well.