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.
Here’s the problem as I see it. I believe impeachment is doable although by no means a sure bet. It would no doubt be an almost completely partisan vote with defections on both sides but I think at the end, the “yeas” would prevail.
However, as many others have already pointed out, conviction in the Senate is another matter. Even if every single Democrat plus the two Independents who caucus with the Democrats were to vote to convict, unless they get some Republican votes, it’s not going to happen. I don’t know that the people clamoring loudest for impeachment understand that. I’m afraid they’ll see it as just another “DLC Repug-lite” cowardly sell-out even if all the Democrats (plus Leiberman and Sanders) vote for conviction.
I agree that from the partisan perspective of aggregating and holding power, impeachment may not be the best strategy. Undoubtedly, Rove is holding the revenge card up his sleeve that he’ll use in the media to brand Democrats petty children who are simply finding their opportunity to repay the GOP for their impeachment of Clinton. The MSM also undoubtedly would be gleeful in their punditry, ascribing all the motivations and reactions Gitlin outlines. But, isn’t such a partisan strategy just another aspect of the political cynicism by which voters are so repulsed?
However, impeachment should not and need not be about vengeance–whether as tit-for-tat vis-a-vis WJC, or for the actual victims of the crimes of the Bush White House. Rather, as John Nichols illuminates in The Nation (8/13/07) and echoing the sentiments of Bill Moyers panelists, “…the point of impeachment is not the transitory crimes of small men but the long-term definition of great offices. …the Founders intended impeachment less as a punishment for office-holders than as a protection against the dangerous expansion of executive authority. If abuse of the system of checks and balances, lies about war, approval of illegal spying and torture, signing statements that improperly arrogate legislative powers to the executive branch, schemes to punish political foes and refusals to cooperate with Congressional inquiries are not judged as high crimes, the next President, no matter from which party, will assume the authority to exercise some or all of these ilegitimate powers.” Indeed, the partisan temptation to do so will be great, even if just as a matter of righting the wrongs done by a previous administration.
So, the Congress has a solemn, non-partisan duty to our Constitution to execute an impeachment not only against Bush and Cheney, but also against any scoundrel, tyrant or demagogue that so abuses the powers of their offices and damages our Democracy. That the Democrats make up the majority of the Congress right now, it falls to them to muster the necessary support for those articles. But, it also falls to all MOGs to weigh the facts of these matters objectively and to acquit their Constitutional duty. To do otherwise–whether as a matter of winning elections or as a matter of partisan solidarity–is merely to succumb to political cynicism. Such may be considered complicity in the same crimes as those accused, since it is a withholding of the last instrument necessary in preserving our system of checks and balances–and in spite of Justice.
Perhaps, then, a national civics lesson is in order, a Prophylactic for the People against the inevitable slings and arrows of the MSM, screeching of vengeance and pettiness and disloyalty in “war time” like a chorus of so many howler monkeys, a cacophony of “sound and fury, signifying nothing.”
Perhaps also, for this one action, all Democrats and any Republicans of conscience who would join them, should declare themselves Independents, making it clear to the People that this is an action of Our supreme legislative body performing its Constitutional duty.
Nichols concludes, “No matter how unsucessful we may think [Bush’s] tenure has been, it will leave a mark on the Republic. If that mark is of a presidency without limit or accountability, Bush and Cheney will have changed the country far more fundamentally than any of their predecessors.”
Here one is reminded of the legacy of Julius Caesar in the course of the Roman state. While the “noblest” Romans assassinated and buried Caesar, the fundamental mutation to tyranny that he wrought persevered. Republic became Empire. But, the Pax was a pox upon all houses. The brutality necessary for imperial rule spread from the reaches of empire back to mother Rome, where fear and poverty and oppression prevailed until the Fall.
Are we not already seeing these same signs as we enter upon a new era of imperial executive? Are our armies not already waging an unwinnable, unending war against a shadowy enemy of ideology? Are we not already refitting our society for the paranoia of an all-seeing eye? Have we not already succumbed to a politics of effete consent?
So, it is not enough to punish these mere men for their transgressions, though justice demands it and impeachment will accomplish it. Such ad hominem penalty is merely cutting a head from the hydra of imperialism, for another will grow back in its place. No, that imperial dragon must be slain. But it will take more than a partisan Brutus. It will take a People expressing their Will for the persistence of democratic self-governance through the only vehicle We have: the Congress. That vehicle is so much bigger in its Constitutional sense and its Democratic import than any political party. And ultimately, the members thereof must act in accordance with the Will of the People to restore balance and integrity to our great Nation.