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.
Interesting but isn’t this kind of information supposed to be useful so it can establish what we all can agree on or even where there aren’t absolute disagreements? I think it also helps to show where Republicans and R leaners aren’t exactly on the same page and that’s at least some of what Democrats should be emphasizing when talking to people who tend to vote Republican.
Because it seems that Democrats talk to people that don’t vote for them about what they think they should care about rather than what they do.
And don’t Republicans focus on what their voters are currently united on? From this poll, you can see support for the wall as well as views on size of government are there for Republicans and R leaners so they obsess over that. They don’t give as much attention to what they’re divided on (because thats what Democrats are supposed to do) which is also probably why we don’t hear about a lot of things we used to hear them carry on about before.
I wish this poll like this would’ve included questions about Foreign Policy and our relationship with allies, wars for terrorism, right wing terrorism, law enforcement, security, public schools. What’s important to people from any political party doesn’t change because of whats trending being something else and also I think you’ll find more division within the Republicans and leaners there.(getting tired of that word)
There has to be some effort to address white identity politics for many reasons but I’m mentioning it for this post because the Gop is using it as a way to infer Democrats aren’t loyal to the country and that is affecting support for policies that would be healthy for this country. Republicans also use it as a way to gain support for policies that are not and will eventually reach them too.
On white nationalism, question how the Gop’s and current administration’s relationship with Israel and Saudi Arabia fit into that especially when they go after the amazing but also very normal freshman gals in Congress
I think it could be useful to remind people of the native ethnic, religious and language diversity in Europe. (I know for myself there were a lot of things I didn’t know about Europe until I started a family genealogy project a few years ago)
It could be asked what people think about increasing the severity of child support enforcement if the state is unable to help single parents in the many ways that they do now.
Some questions about father figures and male role models could be put out there too.
Its bizarre to me that the people who were the most upset about the way dads were portrayed on television and blamed it on the left and ultimately Jews are likely now supporters of the current administration. Are we sure this is the “yay testosterone” party?
Is the GOP trying to portray American white men as the most unappealing creatures and lousy fathers on Earth? I would like to see that question in a poll.