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.
Some observations on the Childers-Davis race that don’t seem to be getting much play from the relentlessly national focus of MSM coverage:
First, it’s not exactly true that this was a rock-ribbed Republican district. Until 1994 it was represented by that old seg Democratic lion Jamie Whitten; Roger Wicker won it in 1994 and held it since as much by the power of incumbency as by his party label. Secondly, as far as I can tell looking from Nashville, the voting patterns displayed some serious socio-political cleavages of the sort often missed by nonsouthern observers [Not you, of course, Ed!]. Davis is Mayor of Southaven, in De Soto County–the one county that he won really handily. De Soto is a booming middle-class suburb of Memphis, though of a lesser social stratum than tony easterly suburbs such as White Station or Germantown; it’s a product of white flight from Memphis [The suburb just north of the line is appropriately named Whitehaven], and as a result is racially pretty hard-edged. It’s hardly surprising, then, that Davis would have offered to grant political asylum, as it were, to the statues of Jeff Davis and Nate Forrest when Memphis was discussing removing them from a city park. But, perhaps more importantly for this election, the residents of De Soto are socio-economically poles apart from the rest of the district. The problems of the rural South–notably deindustrialization, which Childers addressed with an aggressive economic nationalism–are foreign to a population that’s basically tied to an urban economy, tends to take its prosperity for granted or as the reward for its own virtue, and tends to be much more hostile to government solutions than a rural and small-town region with a heritage of attachment to TVA. Outsiders [You know this, Ed] think southern Republicanism is just redneck racism shifted over bodily from the Democrats after passage of the VRA in 1965; but not only is the political story more complicated, but this stereotype misses the fact that modern southern Republicanism began in the suburbs [at least as soon as there *were* southern suburbs; in my native SC we were just beginning to see them in the 1960s]. Revisionist historians like Matt Lassiter and Joseph Crespino are beginning to rewrite this history. For present purposes, though, the important point is that the suburban character of the Republican base made it vulnerable to a challenge such as Childers’s–especially when coupled with the widespread unpopularity of Bush and [This is a bit of a surprise to me in this district] the Iraq War [but then it’s districts like this one that have borne the brunt of sacrifice]. Thus, while De Soto alone contains 20 percent of the district’s population [and growing], and Davis won it handily, he won virtually nowhere else.
The bottom line? Contrary to the Tom Schallers of the world, Democrats have never stopped being competitive in the South; with the right candidate and appeal, they can beat a Republican Party that’s so tied to a complacent base, and so wedded to the old strategies of tarring local Democrats with national [and black] associations, that it has no clue about how to counter a candidate who can’t credibly be tarred with the “Pelosi Democrat” label and who talks about issues that the Republicans ignore. Of course, the Schallers can’t really be too happy with this result, since their real complaint has never been with southern Republicans, but rather with southern *Democrats.* Childers will be one more Blue Dog, and those who want to run Blue Dogs out of the party are losers here as well. But if Democrats can neutralize the cultural issues and can exploit genuine local problems as they’ve done here [though, as a student of southern economic development, I’m not happy with Childers’s approach on policy grounds]–they’re in the game.