Did the Umpire Strike Out?

The GOP “must sharpen its message on abortion,” chairwoman Ronna McDaniel tells the Associated Press. It’s the latest signal that the Democrats have the wind at their backs after the reversal of Roe v. Wade. It’s a reminder, too, of Chief Justice Roberts’ attempt to preserve Roe while allowing Mississippi’s 15-week ban on abortion. Was he trying to avert an electoral disaster for Republicans — or was he trying to save the court? Or both? “Judges are not politicians,” the about-to-become Chief Justice of the United States told Senators at his confirmation hearing in 2005, adding: “I have no agenda.” He vowed to “remember that it’s my job to call balls and strikes, and not to pitch or bat.” Yet in Dobbs v. Jackson Women’s Health Organization, the political implications of the case seemed to cause the Chief to chafe at restraint and, instead, to attempt a political démarche.The Chief Justice appeared to be at pains to avoid the disruption of overturning the Roe precedent, as the balanced and fair Adam Liptak reported in the Times. During oral argument, Mr. Liptak reckoned, the Chief Justice tried to shift the focus back to Roe from Dobbs. The idea was to weigh “the quality of the decision’s reasoning,” Mr. Liptak explained — “an apparent attempt to dampen the jolt to the system.” A better version of Roe appeared to be the Chief Justice’s aim. This would require the court to go back not to Roe itself, but to the briefings and arguments that were offered by the parties back in 1972. That’s why he suggested that “the fetal-viability line established in Roe was not a crucial part of the decision’s reasoning,” Mr. Liptak writes. “Was viability an issue in the case?” the Chief asked. “I know it wasn’t briefed or argued.”By “shifting the focus from what the court had done to what the parties in the case had asked it to do,” Mr. Liptak writes, Chief Justice Roberts “was trying to justify upholding a 15-week line while stopping short of overruling Roe entirely.” The Chief Justice had “made a similar move” in a 2007 case over public school integration, Mr. Liptak noted, when he went back to the briefs in Brown v. Board of Education.In that case, the Chief Justice emerged in the majority when he noted “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” a conclusion he said was “faithful to the heritage” of Brown. Yet when it came to Dobbs, he was unable to attract a single other justice to join his effort to rewrite Roe. Now Republicans find themselves “scared and confused,” as National Review’s Rich Lowry describes it.The GOP had decades to prepare for the end of Roe, Mr. Lowry writes, yet finds itself without a plan. Some in the party “think they can run and hide,” while others push “maximalist positions” like abortion bans “with no exceptions for rape or incest.” No wonder Ms. McDaniel fears the Democrats’ “momentum,” and touts the GOP “record of supporting exceptions for abortion in cases of rape, incest and the life of the mother.”The AP notes, though, that Ms. McDaniel is “sidestepping questions” about GOP candidates opposing those exceptions. Mr. Lowry suggests a different path to stave off midterm disaster. “Pro-life Republicans should say they ultimately seek sweeping protections for unborn life,” Mr. Lowry says, yet for now back “a compromise proposal of some sort, say a gestational limit of 15 weeks.” It sounds a lot like Chief Justice Roberts’ position. Mr. Lowry says incremental progress on abortion “would be in keeping with the trajectory of successful past campaigns of moral and social reform.” Yet why would the Chief Umpire consider such a political move in Dobbs? “Nobody ever went to a ball game to see the umpire,” the Chief has said. Then again, what if it’s tied at the bottom of the ninth with the bases loaded and the umpire throws his arms out horizontally and yells “he’s out!”?

Did the Umpire Strike Out?

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