The Morning Jolt

Politics & Policy

What Challenging Roe vs. Wade Might Look Like Today

Signs at the Supreme Court during the annual March for Life in Washington, D.C., January 18, 2019. (Joshua Roberts/Reuters)

Making the click-through worthwhile: Some cautionary notes about those who see the new abortion laws in Georgia and Alabama as a path to overturn Roe vs. Wade, the discussion about Iran and military force is asking the wrong questions, Democrats pursue an extremely familiar strategy regarding the president, and a look at a white-knuckle thriller you won’t want to miss.

Do You Really Trust Justice Roberts with a Challenge to Roe vs. Wade?

David French argues that what we are seeing in two Southern states is an effort to force the Supreme Court to reconsider the issue of abortion, and a bet that this court will see the issue differently than it did in 1973 with Roe vs. Wade and in 1992 with Planned Parenthood vs. Casey.

Georgia and Alabama are saying: “We’ve read Roe, and we’re making the very legal statement that Justice Blackmun says would fundamentally undermine the case for abortion. Under our federal system, we can expand the legal definition of life.” While pro-life Americans can and do engage in good-faith debates about tactics, I prefer the most direct approach. Tell the Court what life means. Make the Court break the federal system once again.

The timing is right. For two generations the Roe decision has distorted American politics. Millions of voters cast their ballots for president primarily to influence that president’s judicial picks, and there is now a majority of justices on the ballot picked by presidents who openly ran on a pro-life platform. Donald Trump would still be the Apprentice host but for his pro-life pledges. Have 20 years of political activism been in vain? Have federal elections polarized to the point of mutual partisan hatred merely to decide whether doctors must have admitting privileges at a local hospital before they kill a child?

Allow me to be uncharacteristically pessimistic for a moment. Think back to 2012, when the Supreme Court was asked to resolve whether the individual mandate of Obamacare/the Affordable Care Act — which required citizens to purchase a product (health insurance) or pay a tax penalty –- was consistent with the U.S. Constitution.

Needless to say, the stakes were enormous; if the court struck down the individual mandate as unconstitutional, it would undo Obamacare, the signature domestic legislation of the president right before the 2012 presidential election. Republicans would be vindicated, Democrats would be humiliated, and in all likelihood, the entire ACA would never go into effect, because the legislation was built like a Jenga tower, where removing one element made the other pieces fall apart. The political earthquake from the collapse of the health -care bill might have been enough to derail Obama’s reelection.

The Democrats and their allies made a full-court press in that other hugely important court, public opinion, arguing that if the court struck down Obamacare, it was destroying public faith in its judgment — and that Chief Justice John Roberts, in particular, would be remembered as the man who destroyed the court’s reputation. Jeffrey Rosen argued:

. . . if the Roberts Court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure. But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance.

Senator Patrick Leahy claimed, “It would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.”

President Obama contended, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” (It would be neither unprecedented nor extraordinary. Just two years earlier, the Supreme Court had struck down significant portions of McCain-Feingold campaign finance-reform law, concluding they violated the First Amendment; McCain Feingold passed with 240 House votes and 60 Senate votes, more House votes than the ACA had.)

Roberts “initially voted in a private conference to strike down the individual insurance mandate — the heart of the law — but he also voted to uphold an expansion of Medicaid for people near the poverty line. Two months later, Roberts had shifted on both.” We don’t know precisely why Roberts changed his views so dramatically, but there is a widespread belief that the public pressure campaign affected Roberts’s decision.

As CBS News Jan Crawford reported at the time:

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.

There were countless news articles in May warning of damage to the court – and to Roberts’ reputation – if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint. It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Roberts has never laid out, in detail, what drove him to change his mind so dramatically. Maybe he really did rethink it and conclude that the individual mandate was just an unorthodox but constitutional exercise of the Congress’ well-established power to levy taxes.

But if Roberts really was swayed by a fear that striking down a priority of liberals would do irreversible damage to the Supreme Court’s reputation . . . a guy who wasn’t willing to reverse the individual mandate sure as heck isn’t going to reverse Roe v. Wade.

Way back in the second Bush administration, another issue important to many conservatives was headed towards another make-or-break moment before the Supreme Court: the Second Amendment.

The Heller case quickly found a powerful opponent in the National Rifle Association. This surprises nearly every layman I discuss the case with, most of whom assume the NRA was behind the lawsuit in the first place. The Parker lawyers received backroom visits from allies of the NRA before their case was filed, discouraging them from going forward. The Supreme Court (which still had Sandra Day O’Connor back then) would not reliably deliver a victory, they argued, and an authoritative statement from the Supremes that the Second Amendment did not protect an individual right could prove devastating to the long-term cause.

Some gun owners found the NRA far too timid in this particular court battle, at least at the start. But the perspective of the NRA is understandable; a case before the Supreme Court under these circumstances represents playing poker and pushing all your chips to the middle of the table, throwing in next month’s rent money, and taking out a large loan from some guy named “Vinny the Shark.” If you win, you win big; if you lose, the setback is devastating.

Gun owners won with Heller. Will the pro-life movement win a legal challenge to these state laws on abortion? And how much do they want to bet with Roberts as the fifth vote?

The Choice Isn’t War or No War. It’s How Do We Respond if Attacked?

Conor Friedersdorf argues America needs a permanent anti-war movement. (He somewhat acknowledges that the anti-Iraq War movement of the 2000s was mostly an anti-George W. Bush movement, that complained quietly if at all about Obama’s deployment of troops overseas, drone warfare, involvement in Libya, etcetera.)

We don’t know what Iran is going to do in the coming days, weeks or months. But we know they, or their proxies, may attempt to kill Americans. If that happens, the question then becomes, what do we do? Very few Americans want all-out war with Iran, and an attempt to topple their regime. But we also won’t want any attack on Americans to have no consequence.

I Feel Like We’ve Been Here Before

Headline over on Talking Points Memo: “Once Again, Democrats Are Betting All Their Chips On Bob Mueller.” Hey, there’s no way that could turn out to disappoint them, right?

ADDENDUM: Time on the plane back from Austria left me a chance to read a thriller I’ve been meaning to get to, Matthew Betley’s OverwatchBetley is fascinating figure; he spent ten years as a Marine officer and was trained as a scout sniper platoon commander, an infantry officer, and a ground-intelligence officer. His experiences include deployments to Djibouti after 9/11, and Fallujah, Iraq, prior to the surge. Over at Townhall, he’s been detailing his experience with the Department of Veterans Affairs in treatment for lung damage, and it’s an eye-opening, sometimes maddening portrait of the frustration our veterans encounter. But Betley is fair-minded about the VA; he sees plenty of good people trying to do their best, but stymied by a Byzantine bureaucratic system.

Overwatch is the first book in Betley’s series featuring Logan West, a retired Marine officer who survived hellacious experiences in Fallujah and who’s dealt with the ramifications of that by turning to the bottle far too frequently. I wasn’t sure about having a not-so-recovered alcoholic as a protagonist at first, but it adds a new sense of tension with the main character. There’s always a chance that at any moment — particularly the not life-or-death moments — that the character may reach for the bottle and put himself in an even more dangerous situation.

Betley knows how to write action sequences, which I’ve found to be way more difficult than it appears — describing each combatant and their actions in specific detail without getting bogged down. Overwatch’s portrait of wartime Iraq brings out the sights, the sounds, the smells, and a constant sense of tension and foreboding. One of the things I love about thrillers is how they explore the real world while running through a fictional story; Overwatch offers a sharp portrait of the Cuerpo de Fuerzas Especiales, the Mexican special forces units, usually deployed against the country’s vicious and notorious drug cartels. (You know those secure metal briefcases you see being used to carry secret plans or gadgets or bombs in the movies? They’re called a “Zero Halliburton.”) And while the story’s MacGuffin initially comes across as baffling – why is everyone so concerned with this seemingly common war souvenir? — it quickly becomes the centerpiece of a spectacular plot that incorporates real-life events in the Middle East.

Betley told me that Overwatch starts the slowest out of all of the books in his series. Keep in mind, Betley’s idea of slow pacing is grab-the-door-handle-and-double-check-your-seat-belt-as-your-friend-driving-exceeds-the-speed-limit “slow.”

Most Popular

Film & TV

The Manly Appeal of Ford v Ferrari

There used to be a lot of overlap between what we think of as a Hollywood studio picture (designed to earn money) and an awards movie (designed to fill the trophy case, usually with an accompanying loss of money). Ford v Ferrari is a glorious throwback to the era when big stars did quality movies about actual ... Read More
Politics & Policy

ABC Chief Political Analyst: GOP Rep. Stefanik a ‘Perfect Example’ of the Failures of Electing Someone ‘Because They Are a Woman’

Matthew Dowd, chief political analyst for ABC News, suggested that Representative Elise Stefanik (R., N.Y.) was elected due to her gender after taking issue with Stefanik's line of questioning during the first public impeachment hearing on Wednesday. “Elise Stefanik is a perfect example of why just electing ... Read More
White House

Trump vs. the ‘Policy Community’

When it comes to Russia, I am with what Lieutenant Colonel Alexander Vindman calls the American “policy community.” Vindman, of course, is one of the House Democrats’ star impeachment witnesses. His haughtiness in proclaiming the policy community and his membership in it grates, throughout his 340-page ... Read More
Law & the Courts

DACA’s Day in Court

When President Obama unilaterally changed immigration policy after repeatedly and correctly insisting that he lacked the constitutional power to do it, he said that congressional inaction had forced his hand. In the case of his first major unilateral move — “Deferred Action for Childhood Arrivals,” which ... Read More
White House

Impeachment and the Broken Truce

The contradiction at the center of American politics in Anno Domini 2019 is this: The ruling class does not rule. The impeachment dog-and-pony show in Washington this week is not about how Donald Trump has comported himself as president (grotesquely) any more than early convulsions were about refreshed ... Read More