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.
I understand that polling organizations cannot poll people who just use Cell Phones (young people that tend to vote towards Kerry). I have read that their are 40 Million people using just cell phones now. Is this correct?
Go Kerry!
Referees skew the outcome of games. Judges skew the outcome of trials. They don’t usually do it at the buzzer. No, they do it all along, especially early enough to beat down the side they want to lose, then let them come back up. It’s the way there are fixed outcomes in trials, in games, and in other places in life. I don’t approve of it, but it exists.
I believe what we are seeing is a concerted effort by some polls to impact the election with badly constructed polls which are designed to give Bush big leads. The data simply don’t support these polls as sound.
They are piling it on heavy now because the know at the end they will have to close the gap, just so they don’t look ridiculous. After all, no one can really prove they were wrong unless they badly miss the final number.
Look for the pro Bush polls to continue to show big Bush leads until the last week, then they will close it. But not until the day before election day, when they will still give Bush more points than he will have.
Some referees are dirty, some judges are dirty, and some pollsters are dirty. They’re names for hire.
Mike in Md — I agree that despite the discourses about cell phone use, I doubt it will have any decisive effect on the polling methodology on its own. I also think that the SUSA polls are not terribly bad news for Kerry. The election will not be held today and he is within striking distance in several states. Although I wish he were ahead in several states won by Gore, with the exception of Wisconsin, he is not terribly behind either.
As regards the state of Wisconsin, I really have trouble with a state that leans toward Bush because Kerry said Lambert Field instead of Lambeau. I certainly hope this is not the reason for the Bush lead! If the people of Wisconsin are willing to make voting choices on the basis of something so trite while Bush has so terribly mismanaged domestic and foreign affairs, then I think they deserve four more years of hell.
I’m skeptical of SUSA polls; as I have posted on here before, their result in my home state is totally out of line with anything else (including reality.) And the NJ result showing Kerry behing by 4 is also an outlier; that said, Kerry’s got some work to do there.
But the polling news cited before by Mr. Mankuch is not terrible for Kerry. Not great, but not terrible. Most of the polls cited are within the margins of error (in some cases one point) and I have not seen any other survey that shows Bush ahead in Oregon (most show Kerry ahead, but not by a whole lot.)
The Wisconsin one is most problematic from a Democratic perspective, though the one with Bush ahead by 14 points (the Badger poll) seems out of line; I noticed that Republicans had an 8-point margin among respondents, which seems unrepresentative. (Previous Badger Polls have constantly been more pro-Bush than others, as well.) But Kerry is probably still behind there, though maybe not by much. Again, he’s got to work harder there (and remember, it’s LamBEAU Field!) Democrats also should work hard at last-minute voter registration there; the state’s election-day registration may produce results that the polls don’t show. I’ve read that Minnesota’s registration is similar.
The increasing reliance on cell phones (especially by the young, one of Kerry’s best groups) may render the polls off by a point or two, but I doubt that that factor by itself explains Bush’s leads in several key states. Though several of them are extremely narrow, so anything could be blamed, including polling error.
I would just like to chime in that I feel in my bones that any poll that shows Bush winning Oregon is going to be proven wrong on Nov. 2. The intensity of the anti-Bush feeling in Portland and Eugene is absolutely unprecedented. You can go on a number of admittedly unscientific factors (anecdotal conversations, the Portland turnout for Kerry of 50,000 to 60,000 at the rally in August, a simply unbelievable amount of Kerry stickers and yard signs, the number of people I know who are actively involved in defeating Bush compared to 2000, Republicans I know who have switched to Kerry, etc.etc.). Portland and Eugene can and will outvote the Republican areas in the state. I don’t think it will even be close here.
“So how is any pollster supposed to correct for the skewing that happens due to these effects? I don’t think there is any acceptable methodology to do this now.”
I believe that on Election Night, when the electoral map begins to turn blue in state after state after state the pollsters were calling red, they will have to face up to this problem or they will lose all credibility.
One point about the cell phone issue: I completely agree that this invalidates a lot of polling, but I wonder if that is the case equally in every state. Not to sound like David Brooks, but I wonder if “Red America” has the same degree of the cell phone/no land line phenomenon? Where I live, in Seattle, it seems hardly anybody youngish has a landline, or if they do, they screen their calls. And they aren’t home much anyway. I imagine that in Alabama it might not be quite this way yet?
Yes DanF – I think the cell phone effect is going to prove to be a major thorn in the side of pollsters in this election and going forward. I think there has already been a plethora of evidence that the samples in most of these polls seem to be heavily skewed towards Republicans. Anyhow, I’ve heard the # of cell phones is something like 160 million – and I think we can all give annecdotal evidence that supports the notion that a huge proportion of young urban dwellers are heavily reliant on their cells. Also, the other day I posted my experience of Gallup Poll hanging up on me, and someone suggested that it was probably because their dialing progran detected my caller ID – I don’ t know if that is in fact the case, but likewise, I think caller ID elimination is a further skewing problem.
So how is any pollster supposed to correct for the skewing that happens due to these effects? I don’t think there is any acceptable methodology to do this now.
Don’t like these poll results much either, but hopefully they will change in our favor after the fine week Kerry’s had. Check out Ras – better news and perhaps more reflective of the change in Kerry’s campaigning style.
Ruy – thank you for the screening system!
What is WH?
Speaking of trends, Rasmussen’s tracking poll today shows Kerry just 0.9% behind Bush — quite an improvement from the 4-point spread of the last three days.
http://www.rasmussenreports.com/Presidential_Tracking_Poll.htm
Some key battleground states with among the worst-maintained voter lists (lots of erroneously purged voters), according to a recent study by Scripps Howard News Service, are Pennsylvania, Wisconsin, and Missouri.
This from an eye-popping article in the current, October issue of The American Prospect, “2000, The Sequel”, by Joshua Kurlantzick, on how the Help America Vote Act (HAVA) passed in ’02 by Congress may have made things even worse.
http://www.prospect.org/web/page.ww?section=root&name=ViewPrint&articleID=8544
A few other points may have particular pre-Election Day relevance:
*NY PIRG says it is illegal for local election boards to tell poll workers not to accept a student ID as proof of ID. U Wisc and Penn State Students for Kerry in particular, do you copy? A recent study in NY found that election officials in only 18 of 45 counties even understood voter-ID requirements.
*Some states simply do not count “provisional ballots” at all (which may be cast by individuals not permitted to vote by election officials on Election Day). HAVA established no national guidelines on when to count them. Which suggests just a few questions for state and local election officials and newspaper editorial boards.
*Representative Rush Holt (D-NJ) and others became so concerned about huge problems with the touchscreen machinery in many states that they drafted an amendment to HAVA that would require touchscreen machines to have a paper record. Bob Ney, Chair of the House Administration Committee, has not allowed Holt’s legislation, offered in May 2003, out of committee. House and Senate Republicans have introduced “smokescreen” versions of Holt’s bill that contain similar provisions for verifiable voting–by 2006.
*Major White House footdragging on setting up the Election Assistance Commission, created under HAVA to disburse money to states to upgrade voting systems, issue guidelines, and hold hearings to help make voting as fair as possible. Shockingly enough it is now too late for this Commission to do much of what it was supposed to do for this year’s election.
1) Love the new posting policy.
2) I have oodles of anecdotal evidence, but would like to know if there is a way to confirm the number of people in urban and rural areas who have abandoned their “land-lines” in favor of cell phones. Most of the people I know my age (39) or younger who live in metropolitian areas either completely rely on cell phones or will only answer their cell phones without first screening (caller ID/answer machine) as they know that the only people who can call them on their cell are people that they have given their number to.
This might account for the Republican skew in the polls. If you can’t reach the Deomcrats who live in the cities, you can’t poll them. My feeling, and anecdotal evidence, is that rural folks keep their land-line as phone coverage isn’t that great outside of the cities.
Is SurveyUSA a bunch of Republicans? as ElectoralVote.com points out, this Oregon result is a bizarre outlier.
It’s good to see focus on the state races, because they’re all that matters. Unfortunately for the challenger, this poll brings terrible news. He has to pick up states (as compared to 2000) to win, but instead, he’s losing six.
States and his deficit:
ME -1
IA -4
OR -1
NJ -4
WI -14, -10 in the two latest polls
MN -2, in the latest poll
Certainly there’s still time for change, but as of this snapshot it’s 331-207. Let’s say Senator Kerry picks up ME, MN, NJ, and OR, and it’s still 295 -243.
I wouldn’t pay much attention to SUSA polls. They always lean way Republican. I remember they did back in 2000.
Ruy,
Thanks for giving the lie to these lazy, superficial poll stories about usually non-existent “gaps”. We can call it Gapgate.
Also If you haven’t done so already check out “King of the Polls” on http://www.zogby.com
It ‘splains why he’s da best!
Keep up the good work.
VJ