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.
McConnell and Trump said it was a bump for them and they did so with authority and great strength so it must be true!
The only bump I was aware of was after Helsinki which happened to be a couple weeks after 8 Republican Senators spent the 4th of July in Russia. Right, because before that everyone Trump endorsed lost. I guess that was the same kind of situation though. What everyone thought would be a disaster for Trump’s GOP turned out to be great for them. How do they work their magic?
Stranger still, Trump’s Republicans are overflowing with offerings to help Democrats target them in the election and they are either ignored and become “wins” because the GOP is playing a game of destroying the hearts and minds of Americans while Democrats try to find the best economic policies for people who are known to vote against their own economic interests.
Are Republicans trying to help Democrats so they can impeach Trump because theyre too afraid to do it?
They become more and more extreme because the Democrats arent noticing now Republicans are trying to help them?
Or is it just that they believe that if you can communicate a lie with force and conviction, you win
https://www.washingtonpost.com/business/economy/mcconnell-calls-deficit-very-disturbing-blames-federal-spending-dismisses-criticism-of-tax-cut/2018/10/16/a5b93da0-d15c-11e8-8c22-fa2ef74bd6d6_story.html?noredirect=on&utm_term=.9465a672e731
Will Democrats grab this and go after Republicans with it, or will Helsinki strike again?
Democrats were already on track to win the House before all the Kavanaugh posturing.
Now we are assured to make it even more difficult for those Red State Democrats to remain in the Senate for 6 more years.
Sacrificing 6 year terms for 2 year terms is not smart.
Also, the hearings have created a backlash for sexual assault survivors all over the country. The standard of proof for rape has actually gone up again and has become part of the partisan culture wars.
This is not a win for Metoo or for Democrats.
Both long term Senators like Feinstein and new candidates like Kamala Harris completely mishandled the hearings allowing them and even making them part of partisan politics.
This proves that Democrats’ leadership problems going forward are not a matter of age or identity. The problem is ideology and an almost total inability to communicate with non-liberals in common sense plain language.
We can’t have complex policy issues and moral discussions be reduced to hashtags and catchphrases like Believesurvivors.
The electorate deserves and expects better.
The leftwing consultant and activist apparatus with its narrow liberal coastal views has proven time and again incapable of speaking to the rest of the country.
We need to have accountability for the consultant/activist class. After disasters like this nomination heads should roll. People shouldn’t be allowed to define defeat as success. This was nowhere near even a moral victory.
We should have 55-65% opposition to Kavanaugh, not a completely irrelevant 46%. We should be above the 50s in almost all states.
Instead people like Harris and Booker who want to be President are pandering already to primary voters and donors. They are catering to polarize audiences in Blue States further yet even there are not able to get to the upper 60s.
The United States doesn’t have national elections. Even when issues are nationalized the consequences are always filtered via the States and congressional districts.
The strategy of not having national strategies and not having national calls for liberals in the cities to restrain themselves and at least try to appeal to non-PC activists is not working.
We should not have lost in 2016. We should be in line not only for gains in the House but also for unequivocal victories in the Senate and Electoral College.
Instead we are just muddling through.
If Trump can get away with murder it is because Democrat’s discourse is still overwhelmingly disliked.