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.
Smooth Jazz,
I would acknowledge that there were some polls that seemed to show some momentum for Dubya, but I will stick to my point that the name recognition of Gallup makes them a little more influential than other polls. Thus I think a careful critique of their process is warranted.
It is interesting that the election is soooooo close that even the polls themselves are competing.
I do like ARG and Zogby, but I do consider other polls as well.
I also get the sense that besides political junkies like us, many people are just now taking a close look at the race and I think that this will bode well for Kerry. They already know ( and don’t like) GW.
True Believer
I don’t know what to make of Zogby, as his polling techniques differ significantly from most others. Sometimes he’s right, sometimes he’s wrong. Nobody’s perfect.
But I don’t buy the theory that he intentionally biases his polls (pre-or-post 9/11.) And as to the idea that he’s in the tank with the Democratic party, I might remind everyone of the 1996 election, when his surveys showed Bill Clinton winning with a significantly lower margin than other polls forecast–and Zogby was correct. (In fact, if I recall correctly, the weekend prior to the election he had Clinton’s margin shrinking to a dangerously low 2% or so over Bob Dole.) The GOP at the time hailed him as the best pollster in the business. Maybe he’s adjusted his methods since, but I don’t think he’s deliberately cooking the numbers just to favor Democrats.
pro-Kerry — then your average is more like 3-4 points than 6-9.
Posted by km at September 29, 2004 11:17 AM
The bigger picture on all of these results are that
Bush has not moved above the 47% approval rating
month after month for the past year, if you take out
the discredited media polls.
Three other factors, the past three presidents elected by the electoral college have not been
re-elected, no president with an approval rating
below 50% has been re-elected, and no president
with negatives on the economy and war has been
re-elected. The electronic media is doing it’s best
to put the best face on this story. The true strory is that Bush is in big trouble and lack of media coverage is the major factor dragging down Kerry.
Even with all of the misinformation coming out of the electronic media, Bush’s poll standings show
how much effect the 2000 election has on the voters
perceptions. If the new voters can overcome all
of the obstacles being thrown in their way Kerry
will win easily.
Km, Point well taken, but small (3-4) leads in general translate into decisive Electoral College victories, ie 300 EC votes for the winner. Whether GWB wins by 3-4 or 6-9 makes no difference to me.
Omar,
That was prior to 9/11 when Zogby was widely viewed as a balanced pollster. Since then he has aligned himself more closely with the views of his brother Jim, the President of a Bush hating Arab organization in the US.
As a case in point, Zogby completely blew the 2002 midterms: He had Dems Mondale (MN), Cleland (GA) & Carnahan (MO) all winning by comfortable marginsl, but they all lost.
A final point to consider regarding Zogby: A few months ago he suggested the race was Kerry’s to lose and has been making very Pro Kerry comments ever since. It’s in HIS interest to tilt his poll to match HIS pre-ordained POV.
Apparently in Smooth Jazz’s world, any poll that doesn’t show a substantial Bush lead favors Dems.
We’ve clearly got two universes of polls going on out there — one assuming a whopping GOP-ID-ing edge, and one assuming 2000 status quo. The first batch are bad news for Bush, since an incumbent really needs to crack 50% or he’s in trouble; the second group say he’s home free (though with the lowest re-elect percentage of any incumbent since Truman). It’s possible on or other of these sets of polls will break decisively before Election Day, but more likely, we’ll be in the dark till returns start pouring in.
I’m not sure the general public pays as much attention to polls as we do. The newly registered voters in lower income areas wouldn’t even have the time, trying to make ends meet. Now, if only Bush’s goons will let them vote!
i think this attack on Zogby is unwarranted. Zogby got the last 2 presidential elections dead on.
Smooth,
I certainly wouldn’t characterize ARG as a Democratic poll — I thought the opposite was true.
Additionally, if you throw in Rasmussen, Economist and Fox News — all of which are Bush by two or less, and none of which can be accused of being pro-Kerry — then your average is more like 3-4 points than 6-9.
New Economist poll is also a dead heat — 46-46.
I like their poll because it has such a large sample (about 2500), which for a nationwide poll is good.
Here’s the link:
http://www.economist.com/media/pdf/YouGovM.pdf
True Believer,
I hear you, but consider this: Wash Post/ABC, CBS, Pew, AP and Battleground, all came out with results similar to Gallup – GWB up 6-9 points among RVs and a similar margin among LVs. You can trash Gallup all you want, but if ALL other polls taken at a similar time show a similar result, then there is a degree of finality that is taking over, notwithstanding the offensive against Gallup.
At the same time, I would be careful about cocooning yourself with results from ARG & Zogby ONLY as the panacea of all credible polls. These entities are arguably Dem leaning, so you focus on them exclusively at your peril. At a minumum, I would average those 2 with all the other public polls to avoid getting false comfort from sympathetic Kerry surveys only.
Great points by Steve.
Very unfortunate that Gallup is such a “brand name” that the general public accepts their information without question.
Will be interesting to see if MoveOn’s anti-Gallup ad has any effect on the polling industry.
I am very hopeful that the Zogby-Arg polls will be more accurate and lead to a big election-night surprise for Kerry.
True Believer
There has been a lot of discussion
over how polls are skewed but even
the NYT article on Gallup doesn’t
begin to touch on the systematic
disinformation that comes from
the media reading the Gallup polls
along with the GOP talking points
right off the prompter.
It used to be the CIA’s job to
influence elections overseas.
Now Porter Goss has been charged
to merge all the intelligence
agencies together.
As we observe CIA disinformation
activity in Iraq begining to be
a factor in how people vote
in the US its worth noting
that how the polls are reported
is a self fulfilling prophecy.
The GOP uses pre-emptive strikes
to paint Kerry into corners where
he can’t get his message out
Issue: Bush is a deserter in time of war
PES: swifties
Effect: Vietnam and candidate service
records are old news, everybody served
honorably.
Issue: Republican Lies
Example: Bush inherited a recession
Tax break helps economy (as we can see)
War on Terror becomes Patriot Act
Exchange Freedom for Security
Unilateral urgency of WMD’s
becomes Liberate Iraq from ruthless dictator
who tortures people in Abu Garoube
becomes bring Democracy to the Near East
becomes nation building Bush campaigned against
becomes to argue not to stay the course in the
face of an unwinnable and disastrous popular
uprising and civil war is unpatriotic
becomes polls show American voters still
support Bush on issues of terrorism and Iraq
PES: Kerry is flip flopper
Effect: Long list of Republican Lies to itemize
becomes Kerry changing his mind
about what the issues are.
Issue:Anybody but Bush
PES: Kerry is a weak candidate
Effect: Internal Democratic
anybody but Kerry
weakens base support,
Bush is perceived as strong
and effective rather than
stubborn and incompetent
Issue: Debates
PES: Bush is ahead in the polls,
Kerry as underdog needs to win
Effect: post debate spin builds on
pre debate polling
It’s like that
Gallup, Strategic, Vision,
Survey USA, ABC, CBS, NBC, CNN,
Time, Newsweek, the Washington Post
all use the same old discredited
methodology.
Zogby, ARG, Rasmussen, TIPP/CSM,
and others that match their sampling
to the actual demographics get
better results.
Having polsters, pundits and
reporters less knowledgable about
the election than the people
who get their information from
the net is something new.
The next step would be to get to
the point where what we know
get’s disseminated with the same
force as cable news and radio.
Talking points should be poll
skewing not rules of debate.