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.
Per Missouri…I haven’t seen tv ads for either candidate in a few days. While the ads were running, they were evenly matched. I have begun to see more Kerry/Edwards signs & bumper stickers. For a time, I thought it was just Bush/Cheney, but the Kerry signs are begining to crop up here & there. I live between rural & suburbs.
Good point Gabby Hayes. I love hanging out in bookstores. After the DNC, the Newsweek Poll comes out – my son and I are high-fiving eachother (JK 8 points ahead one), I go to the bookstore- there’s the latest Newsweek with a big, beautiful cover photo of K&E – New Direction for Cmountry. I just got back from the bookstore tonight – there’s the latest Newsweek with a big, (ugly) cover photo of Bush – trumpeting his march to the WH.
What we are seeing is a concerted effort on the part of several media organs to push Bush.
The post convention contortions to promote only the portions of those polls which show Bush getting a good lead in “likely voters” is a clear attempt to ignore all the polls that show otherwise. Further, the refusal to see the obviously poor methodology cannot be an oversight.
You’d think The Washington Post, NBC News, MSNBC, and Newsweek were all owned by the same people.
Oh, wait. They are. General Electric, top ten defense contractor, multibillion dollars per year.
Bizarroworld – the disparity between polls – between national vote vs battlefields – Zogby, who is usually simpatico described a fairly gloomy outlook on his site along with his latest poll data, reports – some anecdotal – of hordes of new voters registering, probably Dems, but obviously no indication of hopefully positive impact on the election. (sorry for the ungrammatical stream of consciousness)
gail,
I’m about to look more closely at that. It’s a 6% Bush lead in the RV’s. The median of CBS, ABC, Gallup, Fox, and ICR is +4 for Bush, which is what Marshall reported was the Republican and Democrat’s separate estimates post-convention. The 4% is imprecise, but my guess is not a bad estimate. Definitely within reach.
uGH- Just got a Washington Post update in my Email – blaring headline about Bush solidifying lead – yeah it’s a Post/ABC News poll, but still…
What is so bizarre is the huge gap between Bush’s negatives and the positive Bush poll results. So the electorate believes he is leading the country down the wrong track, but hell, they’ll vote for him anyway? Thanks to Tony for a summation of the latest polls. So which do I trust – would love to go with the ones that suit me!
Per Joshua Marshall’s site, the ABC/Washington Post lead will be in the ballpark of the CBS poll, or worse. Dang it.
vote on-
thanks for the correction
i am felling much encouraged.
Here’s confirmation of the Kerry campaign’s perception of the battlegrounds:
http://www.cnn.com/2004/ALLPOLITICS/09/09/strategy.ap/index.html
“Kerry strategist Tad Devine said the campaign had several million dollars in advertising time reserved for Missouri, Colorado, Arizona, North Carolina, Louisiana and Arkansas, which he called a sign of commitment to those battlegrounds. But the ads aren’t scheduled to air until October, if then. No money has been given to TV stations for the October buys.”
In addition to the Bush 2000 states of Ohio, Florida, NH, WV, and Nevada, Kerry is spending on the Gore 2000 states of Iowa, Wisconsin, Michigan, Minnesota, Pennsylvania, New Mexico, Maine, Washington, and Oregon. So…he’s defending 9 and attacking 5. And Ohio and Florida seem to be the key possible pickups.
Devine argues that Kerry is in a better state in Ohio and Florida than Gore was in September 2000. Do we have any info to compare on those two?
If he *does* pick up, say, Ohio and New Hampshire, then Kerry could lose 14 EV’s of Gore states. For instance, Iowa and New Mexico, or any Maine and either Minnesota or Wisconsin. He has to hold Pennsylvania and Michigan….
Gail,
Here’s a quick rundown of what I’ve seen of polls since the twin 11% polls:
Gallup…7% lead for Bush among LV’s, but only 1% among RV’s, Sept. 3-5.
ICR…Kerry up 1% among RV’s, Sept. 1-5
Fox…Bush up 4% among LV’s, with no RV report, Sept. 7-8
CBS…Bush up 7% among RV’s, Sept. 6-8.
Plus a report from Josh Marshall that the two campaigns show Bush up by 4%.
Rasmussen’s tracking shows Bush up by 0.7%.
Zogby showing Kerry with an ECV lead in his last battleground poll.
If you just go with Gallup RV, ICR RV, Fox LV (since they have no RV), and CBS RV, you get an average Bush lead of a smidge under 3%.
And that’s after the Republican convention, the Elephants slinging mud furiously for a long while when the Democrats haven’t responded well. This is going to be close. Kerry should be able to rally in the Gore states. Will he be able to turn Ohio or Florida, or the combination of New Hampshire, Nevada, and West Virginia?
CBS Poll is out – Bush solidly ahead – how to ratioanalize this – need to think something – getting migraine
As a Missourian, I can say that after the Repub convention, I saw a lot of Bush signs go up in yards. However, I’m seeing a lot of Kerry signs as well.
Missouri is deeply divided among its rural and urban regions. I live on the cusp of the rural areas and the suburbs so I get a taste of both. When I got into the suburbs I see a lot of Kerry support (more than I saw for Gore in 2000), but in the rural areas I’m seeing a lot of Bush support.
I don’t think Bush has an 11-point lead here, especially right after Zogby showed them tied just the other day.
I really believe Missouri will boil down to GOTV. Don’t give up on us yet!
Missouri will go Bush. I hate to say it, but Kerry’s message does not resonate there – most citizens are deeply socially conservative and relate to Bush personally and with his social values. There are economic troubles in MIssoui, but unfortunately this election is not about the economy, stupid.
I saw a report (not sure where. The Washington Post?) that Kerry was not targeting Missouri with ads right now. Can anyone confirm? If so, I’d take that as a sign that there might be some more truth to the idea that Bush is surging there.
From the article, the five Bush 2000 states Kerry was targeting were Florida, Ohio, New Hampshire, West Virginia, and Nevada. NH and either WV or Nevada flipping would create a tie, going presumably to Bush in the House. If this is so, the strategy would seem to be (a) holding the Gore states; and (b) picking up one of Florida, Ohio, and New Hampshire/WV/Nevada.
If that’s the strategy, I’m wondering if it might not have been helpful to have Graham on as VP.
Oops. The polls started 1-2 days AFTER the conventions.
Still in the afterglow, IMO.
Rremember that ALL of these new state polls were conducted DURING the convention and 1-2 days afterward.
Regarding Missouri, my initial thought was that the combination of the Repub convention and the Anti-Gay measure (passed with about 70% in favor) on the recent ballot there may have fired up the base. But I haven’t looked for any polling data to support that thought.
tim kaastad –you are confused. Ruy has been staunchly against using LVs until much closer to election day. And the links provided give you both LV and RV.
i am a little lost..is this site a pep rally.?
you didn’t report LV’s which according to you months ago was the true measure of the contest.
Missouri is more culturally conservative and rural than the nation as a whole. It’s often referred to as a “bellwether” for the nation, but I think it’s a step or two to the right of the country overall. That said, I’m not sure things have gone THAT far south there; other current surveys have it closer, though with Bush a few points ahead (Zogby has a tie.)
And the Ohio results are, along with Gallup’s national horse race results, a pretty egregious example of the fallacy of the “likely voter screen.”
I’m guessing the Missouri poll is an outlier. The other recent polls aren’t that strong. But there is a high level of southerner influence in the state and the Republican base was envigorated by the convention, so I’m sure that Bush’s support there is stronger than it was. But 11 points? I’m not buying that.
Anyone have any ideas on why things seem to be going south in Missouri?
When we look at events that will affect the tone of the campaign, I think it is hard to overestimate “Rock for Change.” Having Bruce Springsteen out there proselytizing for Kerry will be an Event. It will persuade and mobilize.
From this point forward, the mojo is definitely with us.