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.
No one is more tribal than Republicans — and their tribe is WASPs. Doug Jones showed that you don’t have to hide who you are in order to win. So did Ralph Northam. Both were pro-choice, pro fairness in the tax code, and pro medicaid. Both were pro civil rights. They aren’t down the line doctrinaire liberals, but they wer
One thing that Republicans have that we don’t is the illusion of authenticity and devotion to principle.
We don’t have to be strident, but we DO have to be authentic. The more we tailor our message to particular audiences, the less authentic we become. That was one of Hillary’s greatest weaknesses — the perception that she was a phony.
People liked Trump and Bernie because they came across as being authentic. Bernie was truly authentic.
Trump was faking it, but had enough of the nativist GOP base to win, and he was running against Hillary and all of her baggage. Joe is authentic, and that’s why Conor Lamb is having him campaign.
Authenticity and lots of shoe leather.
Gregory
You really aren’t getting it. It is about winning elections, not about your personal ideology and prejudices.
We have ceded the “Jobs” messaging to Mr. Trump. A large number of Obama voters flipped and voted for Mr. Trump. Why was that?
You want to to keep losing? Continue the self righteous dialog with yourself and continue disregarding potential allies of differing creeds, beliefs and priorities. It is a surefire recipe for keeping the Repubs in power.
One fundemental flaw in current Democratic strategy is the emphasis on groups of people. We have excluded the white male in democratic retoric and apparently some of their wives took that pretty personally too. We need to speak loudly in an “all lives matter” tone and stop being a society of exclusivity. At this point, everyone is special except the white male; women, LGBT, minorities, immigrants, veterans, etc. We have to stop parsing people into exclusive groups.
Naomi, although what you said is well written, and sounds good; especially to those who you felt was left out, but the fact of the matter is that the past, and current system of government was built around the special privilege of the white male. So to make the white male feel so called “special” now would be to add special to the existing special; given white males special special privilege while everyone else have to deal with just “special privilege”.The Democratic party intent to deflate the arrogance of the white male was met with push back from certain states not the American People as a whole.Let me be clear, deflation of arrogance is not the same as marginalization.The arrogance being some whites believe; that whites inherently are better and therefore deserve “special special treatment” when it comes to running this country among other things,and because everyone else has been elevated to the same level we must be on a higher level or given more special treatment.
The strategy should be to awaken the same abolition sentiments of the Union to abolish the electoral college that was born out of slavery .Explain to the american people that the popular vote is the will of the “American people” and that the attempt to marginalize the many is an affront to the values of the founding fathers pure thought that all men was created equal with no caveats .
Thank you.
Why do some Republicans become Democrats?: Do you have a rank-ordered list of the reasons that Republicans become Democrats?
It seems clear to me that Dixiecrats became Reagan Democrats because of their racism; that they otherwise more or less were with the 99% and got snookered by Reagan and Southern tribalism.
What is most likely to bring not-racist Republicans back into the Democratic fold? Talk about recruits and recruiting.
Best,
Monty Johnston