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’d tend to agree with shai but would also caution about more worrisome, though perhaps counter-intuitive implications of this population shift. I’ve heard reports, although I can’t remember where (perhaps NPR?) in which politicians and demographers have noted that the country is actually becoming more, not less politically homogeneous. Conservatives and liberals are tending more and more to live in neighborhoods (and perhaps states) with residents that are more like them. Therefore I’d throw out the possibility that many of the snowbirds moving south are Republican/conservative leaning, hence the willingness to move to the south in the first place. They might prefer the family values and nascar culture that already exist there or maybe they’re moving for lower taxes and thus they are moving there to be amongst their own kind.
I remember reading predictions in the 80s and 90s that Senator Jesse Helms of North Carolina would be defeated because of all the population growth from the north to the state. It turned out at that many of the people moving into the state were conservative white northerners, not representative cross-sections of the states from which they came (based on exit polls).
This is not to deny that there are many other groups such as Hispanics moving into fast growing red states too, in fact, doubtlessly at faster rates than northerners. But the trends I described above might play out here too. For example, if you look at exit polls it’s easy to see that Hispanics vote much more Republican in states like Georgia and Utah than states like New York and New Jersey. They may also be attracted to those who are politically and culturally like them.
This may also be why Florida, despite so much heavy population growth from northern White baby boomers and non-Cuban Hispanics between 2000 and 2004, actually became more Republican on a state and national level.
I don’t have a solution to this and do believe long-term trends favor Democrats in the country overall, but since our electoral college system is based on geography rathe,r than the popular vote for electing presidents I consider the trends very worrisome.
I personally don’t care about the south; let them have it. We won’t see a blue south in a presidential election for a long time. However, the growth in population in other red states (such as the mountain west) will favor the Dems. As a former New Yorker/Washingtonian who relocated to Denver in ’03, I see the shift happening and am very pleased to be a part of recent Dem success in CO. And, if the Dems play their cards right in ’08, CO’s 9 votes will go blue. Then all we need is 9 more . . . .
With the demographic character of Sun Belt populaltion increases already sited, another factor in the mix is the fact that evangelicals seem to be slowing peeling off the GOP elephants hide, kind of like dandruff on a black shirt.
While it may be true that population shifts might just make red states more purple, the political implications may still be important for a while to come.
In presidential elections, it’s hard to see Texas going for a Democrat for a long time, even if the state is slowly becoming more Democratic. This could be because even a massive influx of new Democrats is not enough to outweigh the already considerable advantage Republicans hold in the state. It could also be because new (potential) Democrats count in the census but do not vote, in some cases because they’re not citizens.
Moreover, an effective gerrymander regime could easily mute the effects of a massive influx of Democrats, by sifting them into already heavily Democratic districts. Thus, Democrats could lose a House seat in the north but not gain it in the south.
Finally, the effects filter all the way down to the low-level races. My wager is that all the new Democrats in the south and west will be less likely to run for and win dog catcher races, for a variety of reasons: for example, they may not be qualified (too young or not citizens), or they may not have the community ties to understand how politics works in their area or to garner a base of support. Transient Democrats are at a relative disadvantage compared to stable Republicans.
I could easily be proven wrong about any of these scenarios, and I certainly hope to be wrong. But I think that we should not rest on our laurels just because population gains in red states are due to Democrats moving in.