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.
This article was frustrating, in part because it ignores an important solution in one regard and perpetuates a myth in another.
It is true that large numbers or workers will tend to depress wages. Therefore, it is incumbent upon the government to set a floor in terms of wages and working conditions for all applicants to avoid businesses using the most exploitable labor. The various campaigns for an increased minimum wage are encouraging. Interestingly, the push to eliminate or alter tipped wages may even be more effective because immigrants are so heavily concentrated in that sector. Bring up working standards and wages will make these jobs more attractive to white and black workers and will help the Latino and Asian people working there now.
The issue of benefits needs more explanation to the general public. Illegal immigrants are NOT eligible for most Federal and state programs and this needs to be repeated as often as the truth that they are not even allowed to vote. Just like the renewed discussion of what an increase in the marginal tax really means, progressive need to counter the falsehoods that right wing and even centrist sources state. Why are there all these people speaking Spanish in line to receive Medicaid? It’s most likely because they are citizens. There are a few limited exceptions but I am waiting for compelling evidence that this loopholes are huge or there is fraud. From a federal government website message from 2014: “No federal funding to cover undocumented immigrants, except for payment for limited emergency services.” https://www.medicaid.gov/medicaid/outreach-and-enrollment/downloads/overview-of-eligibility-for-non-citizens-in-medicaid-and-chip.pdf
I do believe there is a limit to the overall level of immigration but I don’t think we have reached it if we are concerning about having enough workers to support the future economy as the article mentions. The ultimate lose-lose situation (which of course is a libertarian/Republican dream) is many workers with no benefits. Given that immigration from Mexico is down, lets focus on the later.
On the better benefits and salaries issue
1. Better salaries and benefits would increase the difference between wages in the US and other countries, thereby making it even more attractive. This is called the pull factor in immigration.
2. Labor laws in the US are poorly enforced, with workplace inspections in particular being very infrequent. This is why the article calls for enforcing labor laws against employers.
3. Levels of immigration are related to working conditions in the US and to enforcement of immigration laws. It may be true that current levels of immigration are low, but that doesn’t mean they will remain low forever. Conflicts in other countries are increasing and the number of potential immigrants is very high.
On the issue of the strain of immigration on public finances
1. This is probably the aspect that most liberals misunderstand and most pundit misrepresent. The working class understand how the strain works because they use public services more.
2. Immigrants may not be eligible to all public programs, but they are eligible to a substantial proportion either directly or indirectly.
3. Asylum seekers do receive some public benefits (including during the period their applicants are pending -which can take a lot of time and a very high proportion of which are rejected-).
4. More important the children of immigrants receive a lot of public benefits, whether documented or undocumented (eg public education). Ordinary people don’t make a distinction between documented immigrants and their undocumented or native born children. Native born children though have access to many programs that benefit their parents (ie their parents administer the money that their children receive).
5. Undocumented immigrants have indirect access to benefits for example via the use of hospital emergency rooms which are prohibited from turning away people.
6. Another example is jails/prisons, regardless of whether immigrants commit more crimes or not. And of course detention centers and supervision of absconding.
Most cost/benefit analysis for immigration don’t take into account the costs of native born children. The US is in this respect different to Europe where many countries don’t have soil citizenship.
I will agree with you that enforcement of existing labor laws is crucial. In fact, some of the campaigns against tipped wages stems from the fact enforcement of a minimum wage (if tips fall below that level) has not been sufficient in the service industry.
I don’t think increased wages and benefits will create much more of a pull because the rap against immigrants is that they settle for lower wages and thereby hurt all wage earners.
Finally, you seem to be saying that the issue of benefits really comes down to emergency services. Sorry, I am not in favor of banning people from ER rooms or schools. Putting aside all moral arguments, the latter will help create a permanent precariat class which is not in anyone’s interest. In fact, that is probably why Europe has more social tensions over immigration that the US.
Where the working class has succeeded in the past to improve things for themselves are the times they were able to mute ethnic, racial, and other differences (eg. skilled vs. unskilled). Pandering to resentments against others in the same economic boat or worse is not really a viable option. Yes, we have increased border security over the years (and probably a good thing) but that has not nipped xenophobia in the bud. Making sure there is a floor native and foreign born won’t fall through is a better answer all the way around.
That is the whole point of the article, which I don’t dispute.
The fact that the proportion of the foreign born is near an all time can’t be ignored. It has positive consequences electorally, but in policy terms it is more complicated.
I also agree that this is why Democrats must take both social and economic aspects equally seriously.
Let’s see what the House produces, if anything.
Shorter version: scapegoating immigrants is not fair or helpful.
My apologies for all the typos.
Why are “undocumented” immigrants undocumented? Because they are illegal immigrants. Speaking of their illegal conduct in euphemisms like “undocumented” or “unauthorized”, or ignoring the difference between legal immigrants and illegal ones, merely convinces the hearer that the speaker wants to evade the issue. If the Democrats want to speak credibly on this issue, the first thing they must do is abandon the doubletalk.