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.
Democracy is hard. It takes practice. Expecting it to blossom at national parliamentary scale with no minor league farm system was unrealistic.
Before a large political aggregate can successfully decide questions by democratic mechanisms, it has to come to some understanding of what the decidable questions are. It has to reach a broad consensus about how sentiment is divided on those issues (axes of polarization and planes of cleavage) … what opposing coalitions are feasible … where the middle grounds are. Minorities need practice uniting behind the wills of majorities, and majorities need practice refraining from abusing minorities.
National scale is the wrong place to develop these understandings and practice these disciplines, and what emerged was division along convenient, familiar (sectarian) lines of division — which naturally became more polarized as a result.
Iraqi national democracy would have had a better chance if it had been preceded by a cycle or more of limited, local democracy. Town and provincial councils, etc, where the issues are public works and local regulations.
Even monocultural provinces can learn a lot about coalesence and compromise from running their own sewers.
So Bottom Up isn’t off by 180 degrees. 179? Maybe.
There has always been a “shadow” rationale for the U.S. presence in Iraq – a supposedly “hard-headed national security” argument that the region is strategically vital to the U.S. and profoundly unstable and therefore requires an ongoing and substantial U.S. military presence (one that, for religious and political reasons Saudi Arabia could not be asked to play).
From this perspective, all the other rationales for the invasion of Iraq and continuing U.S. presence over the years — Finding WMA’s, rescuing Iraqis from dictatorship, creating a beacon of democracy, preventing chaos, honoring the sacrifice of the troops — are all window dressing.
The real unspoken philosophy is that as a great military power we have the right to enforce stability in areas we consider strategic and we simply will not allow any indigenous insurgents to drive us out.
This is a fairly standard mental framework in the history of 20th century colonialism – it was the underlying attitude behind the French marching through the streets crying “Algeria is French” during the Algerian war of the 50’s and the stuffy British officers drinking to “The Empire” in the decades before World War II.
These days Americans need a more comforting rationale then dreams of imperial glory for occupying foreign countries — but the truth is that pretty much any rationale will do. The gut-level attitude is simply that once America commits to a military presence somewhere it should always “win” and never “give up”. In practice this means mantaining an occupying force on an essentially permanent basis.
Seen in this light, it is not really surprising that the various rationales being tossed around are almost completely incoherent, self-contradictory, and so on. People are not really supposed to believe them as logical arguments, any more then the French in the 50’s actually believed that Algeria was part of France.