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.
omar-
I’d not seen your posts when I put mine up there. Consider it great minds running on the same track.
Given that I keep wondering what’s up with Colorado, I went looking. There are two polls out that show it a virtual tie. One is by Public Opinion Strategies, which is, by one report I saw, a Republican group:
http://www.rockymountainnews.com/drmn/election/article/0,1299,DRMN_36_3188882,00.html
This shows Bush ahead 45-44 in a three way, among likely voters. It’s a small sample, with 500. Kerry has a 50-30 lead among independents in that poll, and a 36 point lead among Hispanics. With a Hispanic running for Senator. The same poll had Bush up 49-40 back in April.
ARG had Bush up 46-45 amng 600 likely voters.
Zogby, in data from earlier this September, had Kerry up by 1%.
When I see those three pointing in the same direction, I start thinking that Kerry really ought to pour in some resources there. I know I’ve said it before, but holding the Gore states and grabbing New Hampshire and Colorado (and ideally Nevada to create a buffer so he could lose a congressional district in Maine and either New Mexico or Iowa…) might end up being his winning strategy, if he can’t wrest Ohio or Florida from Bush.
He’s got to rally in Wisconsin and Pennsylvania to make that one work.
correction, I meant all the GORE states, not all the bush states.
I think Colorado has to be added to the Cook’s # real battleground states considering the poll released today and the 2 polls released in august show bush up by an average of .33 percent and alot of people who are yet to decide.(who normally break for the challenger 2 to 1).
On the other hand I don’t think its a safe bet to assume Kerry will win all the Bush states. Many of those states were razor close last time, and probably will again.
Harris called the tie with their final poll in 2000 (http://www.harrisinteractive.com/harris_poll/index.asp?PID=130) . Their final ONLINE poll also called the tie (but I can’t find the link).
Cook Report indicates that Bush is probably up by about 5% on the whole at this point. And he reports only 9 real tossups….Five were Gore states in 2000, Minnesota, Wisconsin, Iowa, Pennsylvania, and New Mexico. Four were Bush states in 2000, Ohio, Florida, Nevada, and New Hampshire.
If so, then Kerry does need Ohio or Florida for an outright win. Nevada and NH give, at best, a tie.
I’d really love to know more of what’s up in Colorado. I did see one report that seemed somewhat unsubstantiated that the proportional vote in Colorado was currently far behind in the polls.
Also, I agree with the comment upthread, that the close races thing cuts both ways. Yes, Kerry needs to hold all the Gore States and then some, which will be hard. But remember Bush has to win FL AND OH. I’ve seen plausible scenarios in which Bush wins FL, OH, and even MO, and still loses.
Considering Gallup’s definite GOP bias this year I imagine Kerry is doing better in Minnesota than that.
Not just this year. Remember they had Bush up by 13% two weeks before election day 00. Their CEO is a big GOP donor, and apparently they havent precicted an election correctly since George died in 84. I like Zogby and Rasmussen, both reputable in my opinion. And you get one dem and one republican so no one can complain.
Zogby’s running an online poll now, if you want to see wht thay are like for yourselves.
In any case, it seems to me that relying on a sample of land-line phone respondents is kind of a joke in 2004. Why even bother? And why does anyone even take those polls seriously?
thecreature – I think I have read that Zogby also uses email and some other methods to compliment the telephone polling. And that is true, they were the only ones who were right about the 2000 election. But isn’t it odd that all the other national polls were wrong in the same way–they all gave Bush the lead. I wonder why that was?
Gene, I believe I read that somewhere, but I really don;t remember where, nor do I rememebr what Zogby does differently.
But it’s worth noting that Zogby was the only poll in 2000 that called the tie.
What I’d like to know is why anyone would still use the telephone exclusively to do polling? I understand Zogby doesn’t do that, but others do — or am I wrong about that?
Polling data from the major pollsters within several days of the 2000 election show that nearly all showed Bush 2, 3, 4, even 6 pts ahead of Gore.
No, I’m not a statistician and haven’t had a stat course in decades, but to me this suggests some systematic error in the polling or analysis or filtering or all of the above.
What says Dr. Ruy T or other math types out there?
And, if it does suggest systematic error — we’ll discount poll rigging — might those same errors be operaing now?
Who knows? Da Shadow do.
U & Tony,
Excellent responses; Thank you. To be sure, if anyone thinks they can tell you who’s going to win based on current polls, they should have their head examined.
This election will be more event driven than any other in the recent past IMO – And even a last minute bombshell like what happened to GWB and the durnking driving charge in 2000 can upset the applecart.
The only thing I can say definitively today is that I cannot say anything definitive today regarding how this election will unfold.
Reality Check….the only poll that counts is the one on Nov 2.
FACT: In Election 2000 Americans were smart enough to vote +583,000 for Gore/Leiberman. It came down to Florida…we know the story.
FACT: In Election 2000 there were less Americans accessing the Web to crosscheck information and there were no political blogs.
FACT: In Election 2000 Bush/Cheney did not have a ABYSMAL performance record on the economy, jobs, healthcare, education, the environment, Iraq to be measured against.
FACT: For the past 4 years Bush has been misleading the public, distorting fact, and contriving false realities on virtually every major issue because Bushco has to rely on gross image manipulation and false perceptions to win in 2004. And, the US mainstream media ( with some exceptions ) is bending over backwards to help.
The Net Net: More Americans should be smarter in Election 2004 and see that Kerry/Edwards have a much better plan for America and Americans
George W. Bush, the “Excuse President’ is a miserable FAILURE, has NOT earned our TRUST, and will be FIRED on Nov 2.
Even TN and MO are close.
smooth-
Why think Kerry has a shot at Ohio or Florida?
The second to last Florida poll list at RealClearPolitics shows Kerry up 0.3%. The last Ohio poll shows Kerry down only 3%. Rasmussen apparently shows Ohio deadlocked. Both of those suggest that the states are still within his reach. With the hurricanes right now, I’m not sure how much faith I put in any of the Florida polling.
If neither of those two go Kerry, then I see two other promising lines of attack. In both, he goes for New Hampshire. In one, he also goes for Colorado, which has been surprisingly close in what polls have appeared. Colorado, New Hampshire, and the Gore states gives him the win. In the other, he also gets Nevada. Nevada, NH, and the Gore states creates a tie, which might be enough to get Edwards elected as VP, depending on how the Senate races break.
What other Bush 2000 states look vulnerable? I’ve not given up yet on Missouri, Arkansas, or West Virginia, though odds seem against in those three.
But Kerry really *has* to hold Pennsylvania and New Jersey, pretty hmuch has to hold Wisconsin and Iowa, and can’t afford to lose all of Maine. (If he gets NH, then if Maine splits, and he gets Colorado, losing Maine’s other three votes don’t matter.)
So…my view of the battleground is Bush attacking Kerry on Minnesota, Wisconsin, Iowa, Pennsylvania, New Jersey, and Maine; Kerry attacking Bush on Ohio, Florida, New Hampshire, Colorado, and Nevada.
Bush has some more ripe picking right now, but both have ways of making things work out for them. The debates will be big. World events will be big. We’ll see.
Smooth Jazz:
Good questions. If you look at the state polls coming out now, they show the race very close. A few show Bush outside the MOE in Ohio and Flordia, most show him inside the MOE (and closer to tied). In other words, both states are far from done deals. Indeed, Gore was supposedly done in Ohio and pulled his resources, but ultimately came in much closer than polls. Almost all current polls also show CO basically tied, and Nevada within the MOE.
The downside for Kerry is that he has to win a lot of close races. That, I think, is the fundamental reason Democrats are nervous. But, as some have pointed out, this cuts both ways: Bush will be in real trouble if he can’t win FL or OH, even if he picks off one of the close uppwer-midwest states.
That’s one reason why this race is still too close to call. The other reason is that we don’t have a clear idea what’s going to happen with voter turnout. 1998, 2000, and 2002 were all surprises from a polling perspective because the turnout models were wrong. For example, when initial results came in from NC during the afternoon of the election in 2002 the old turnout models suggest a Democratic pickup.
At the same time, polling is getting less and less reliable. Some of the reasons have been discussed here and elsewhere: cell phones, the fact that people no longer want to answer polls, answering machienes, and so forth. This drives my colleagues who study American politics crazy, because their data just isn’t as good as it used to be.
Given all that, I predict either a Bush blowout, a Kerry blowout, or a tight election on the first Tuesday of November :-).
Charlie,
VG analysis but you forgot to point out the following: That all GWB needs to do is hold serve, win all the states he won last time and he’s back in – especially given the fact that the census has given him 7 more electoral votes vis-a-vis 2000.
My question to you is: Given the polling data that you’ve seen, what makes you think that Kerry has a shot at either OH or FLA, since they are the most logical swing states to switch from red to blue. Please note: taking NH will not even cover the census adjustment in the electoral college.
If you respond, please do not flame me with Bush Hating propaganda. A logical, reasonable response would be appreciated.
Kerry may in fact wind up winning several “Gore” states that are now tilting toward Bush. But he will have to expend vital resources in time and money to do so, thus preventing those same resources from being devoted to competing elsewhere–CO, NC, OH, MO, FL, etc. He should have shorn up Wisconsin and Minnesota and Iowa by now–and he hasn’t. Certainly it’s not too late, but having to work these states hurts the overall effort–for Kerry, and importantly, for Senate and Congressional races where Kerry-Edwards’ time and effort could help a lot. T.J.
CDB,
Perhaps as well as the +9 for Kerry the Strib polled among LVs?
Considering Gallup’s definite GOP bias this year I imagine Kerry is doing better in Minnesota than that.