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.
AirBlair-
Depends on whether those independents are representative of independents as a whole. If you’re only getting 20% or so of people responding, it’s quite plausible that those independents inclined to support Bush are oversampled.
The party ID information wasn’t there. I used their information on how people who gave a party preference voted and solved backward based on the overall precentages.
In other words, I used Algebra.
If you want details to check whether I’m mistaken I’d be happy to provide them.
Mark
What I don’t like about this poll is that independents are skewing for Bush, 47-42%. This ain’t good and it ain’t related to party ID.
Mark, how did you find that party ID break-down in the Washington Post/ABC News poll? I can’t find it anywhere on the Post’s “Poll Vault” Web site.
What I can find is the last poll WP/ABC News did in Wisconsin, and it had an oversample of Republicans in it of 6 points.
Washington Post polls have always been favorable to Bush, though, and have always had him near or above 50% even at his lowest. Even at Kerry’s high, he was never more than a few points up. Either the Post is completely accurate and other polls with distinguished track records, like Harris, are wrong, or there’s something about it’s methodology that skews Bush.
to mark- where did you get the party ID info from?
Well, it now seems obvious that Gallup isn;t the only one weighing their polls. The Post poll also had more R identifiers than the national average.
And just to drive the paranoia home, their headline mentioned a “solid lead,” despite the fact that the lead was only 6-7 points.
It appears as though the Party ID here was roughly 37 % R 40% D and 23% Ind. No good news here.
Mark
I couldn’t find a breakdown by party ID for this poll. Does anyone have that?
Let’s toss out the silly Gallup poll— I’m convinced it’s another stinker. This poll is the one that disturbs me. The WaPo ABC one has more Ds than Rs in it, but it has Kerry trailing by 6 (LVs) or 7 (RVs) anyway– he trails in every age group, and trails by three among women, though interestingly he’s winning college graduates. (Perhaps their high school grads skew white, and their college grads skew towards those with postgrad degrees?) It also has Bush over 50, an even worse sign than a 6-7 point lead by itself– and it’s not like our guy lacks name ID.
On the other hand Gore came back from pretty much this situation with this amount of clock left– and Kerry has more money, and a better media team than Gore (though he seemed not to have any until after the RNC).
Ruy:
Do we know what the internals are for the WaPo poll? Does this poll suffer from Gallup’s problems?
I guess it’s pretty clear Bush has the edge going into the debates. Bummer.