Anything’s possible, I suppose. But after the leak of the majority draft on Dobbs from Justice Samuel Alito, would it help the Supreme Court’s credibility — or do even more damage to it? Politico’s Josh Gerstein concedes that a John Roberts-driven compromise position that sustains Roe is “a longshot,” but games it out anyway.

The first problem for the Chief Justice in Dobbs is that neither side argued for or wanted a compromise position, as Gerstein also points out. That in itself forced the either/or seen in the leaked draft:

When the two sides in the abortion debate squared off at the Supreme Court last fall, they agreed on one thing: There was no middle ground.

Now, any hope abortion rights supporters have of avoiding a historic loss before the court lies with Chief Justice John Roberts crafting an unlikely compromise. In the wake of POLITICO’s report last month on a draft majority opinion that would overturn Roe v. Wade, Roberts would have to convince at least one of his five Republican-appointed colleagues to sign on to a compromise ruling that would preserve a federal constitutional right to abortion in some form while giving states even more power to restrict that right. …

The central organizing principle for a Roberts opinion is likely to be one he has articulated many times: that the court shouldn’t issue a sweeping decision when a more modest one would do.

That’s a bit like saying, “if the Dodgers could just get more runs across the plate than the Giants, then they might win the game.” (Factcheck: they do and they do — Ed.) If Roberts could convince one of the five conservatives that a constitutional right to abortion exists, then Roberts wouldn’t have to work out a compromise at all. Alito’s draft opinion rests entirely on the lack of constitutional reference to abortion or anything like it, as well as a complete lack of legal tradition preceding the last couple of decades before Roe of widespread legal abortion.

That is why the all-or-nothing approach from both sides will have to result in an all-or-nothing outcome. There was no particular effort to limit the question to Casey by either side in legal arguments, which would have reset the federal question back to a first-trimester frame of reference (although even then, the companion case Doe v Bolton would still make state-level restrictions questionable). Both sides demanded a sweeping decision, rejecting any middle ground such as that staked out by Gerstein here and arguably by Roberts during oral arguments.

And why? Because both sides recognized that to take a narrower position would eventually lead everyone back to the same argument again. There are already more restrictive laws on the books that would force another legal fight and which would again challenge any narrow, middle-ground Dobbs ruling. More to Alito’s point, it would continue to make the judiciary and especially the Supreme Court the only arbiters on abortion policy when the Constitution never mentions abortion or even health care as a federal jurisdiction.

That’s another reason why the five jurists apparently on board with Alito’s draft — assuming it’s still the majority opinion — almost certainly won’t budge. If anything, the violent reaction and the intimidation campaigns prompted by the leaked draft will only harden their resolve to get abortion out of the realm of judicial fiat and back to where it belonged all along: the legislatures. Otherwise, the justices will just be setting themselves up for another decade or more of these intimidation tactics, especially since a change now would make it appear that those tactics worked.

How many of these conservative jurists want to go through the past six weeks all over again next year in an abortion challenge — and realistically, every year in challenges to what the limits of a Roe-only regime might mean? I’d actually be surprised if Roberts wants to pursue that outcome rather than a ripping of the Band-Aid and a final referral to legislatures.

Is Roberts really that obtuse? Maybe, but I doubt that’s true of Clarence Thomas, Alito, Neil Gorsuch, Amy Coney Barrett, and especially Brett Kavanaugh after the assassination attempt. We’ll see soon enough.

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