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.
PEW and Andy Kohut had the race right on… with this pre-election prediction release…
check it out peoplepress.org
Not so much horse and buggy huh?
Mady..about Zogby, Kerry had a lead last week. Bush had a lead at the end of last week/ the beginning of this one. Now its tied. Indicates that the race is pretty stable right now in a tie.
ABC WaPo is easy. Look at their registered voter data. A huge change 3 days ago from a pretty even split to about a 6 point spread that is fairly stable over 3 days. Indicates to me a pretty big Bush outlier came on 3 days ago, and since then we’ve had 48-47 or so splits. When that big day rolls off, it’ll move closer to tied again. It’s a 4 day moving average, so I expect one more bad spread for us and then, bam, back to normal.
Mady –
One clear difference between the Washington Post/ABC poll and all other polls whose methods I’ve seen described in sufficient detail is that the Post/ABC poll does not weight respondents for Hispanic origin. Hispanics are, as far as I can tell, lumped in with whites.
I would expect that Hispanics with high school education or less would have an extremely low rate of participation in a poll, because of long working hours and language barrier. (Even if you speak a non-native language reasonably well, do you speak it well enough to feel like doing a 20-minutes telephone interview?) The non-participating low-education Hispanics are replaced, due to the weighting process, with low-education whites who (at least in the income-biased sample produced by polling methods) tend slightly toward Bush.
(Note that the ABC weighting method — I haven’t seen the details of the Post’s — is different from most other polls. I called it “cell-weighting” in an earlier post. The more usual weighting method, which I called “parameter weighting,” will also underrepresent low-education Hispanics in the final results, but they will be replaced by a mixture of low-education whites and blacks and more educated Hispanics. This, I would guess, will also bias results against Kerry, but to a substantially lesser degree.)
I think this will be remembered as the year when polls were shown to be living in the horse and buggy world, while the US had moved on to autos.
The polls are measuring a universe that cannot be measured by phone polls pressed into 2-3 day chunks of time in samples that total 1000 and don’t look remotely like the electorate.
Two items:
1. I was going to ask the same question as a previous post: why is the WP/ABC poll so different? Even on registereds, it showed a 7-point Bush lead today, I think…
2. Any idea how many new folks might come out in FLA on the minimum wage referendum? That’s a huge potential swing for Kerry, it seems to me…
Keep up the good work — love this site!!
eg
Yes.
What’s different is the intensity around the election – it’s so high. We Dems want the polls to reassure us, to give us a moment of hope, a moment of reprieve from this crushing Republican control of the Executive, the Legislative and seemingly the Judiciary.
We fear we will lose in Florida again. We fear that the Supreme Court will decide it all again. We fear that we’ll lose because we didn’t get that one more vote out in Minnesota or Ohio or New Mexico. The closeness of the 2000 election, the division in the country, the obsessive news coverage of the coverage of the coverage of the election and the pundits talking about the polls and the insane number of little instant polls and the blogs and the emails and the talk radio and and and . . . It’s hard to keep positive and to think all of our little-door-knocks and small contributions will add up to getting rid of a horrible, horrible president.
I mean – if Kerry wins, it will be the first time since Paul Wellstone won in Minnesota that I can say it was the work of all of us ordinary people doing what we can in the crevices of our work-a-day lives. That would be a pretty big wish come true –
It’s not that no one cared about Gore or Bush as candidates, no one really cared about the election – until, of course, that final day in Florida when it all blew up and then there was Kyoto and ABM and September 11 and Iraq and we all realized how wrong we had been not to work as hard as we could in Fall 2000.
Kerry in a landslide –
Two things:
First of all, I find it alarming that Kerry has not led at all in any recent Zogby polls. Yes, they do waver, but never to Kerry getting a majority percentage.
Also, could anyone explain the methodology of the Washington Post/ABC tracking poll, and why, in a time when very few polls show results that favor Kerry, but most show a quite close race, the Post has been showing Bush consistently at 50% or over. Today it shows, I think, 51 Bush, 45 Kerry.
Thanks,
Mady
Polling is definitely going through growing pains. You cite a number of reasons why polls vary (clearly, on election day most or all will have been wrong–if by wrong we mean to understand predicting the outcome).
I think the polls themselves may be part of the problem. We have respondent fatigue–not on an individual level, but as a nation. Look at those so-called “undecideds.” I find it odd that their numbers have not declined significantly since June. My guess is that they’re not measuring conviction so much as fatigue. It seems like something between 5-10% of every poll are undecided. Wouldn’t we expect to see that decline as the electorate gets to know the candidates? But it hasn’t. My guess is that this group has just had it with pollsters. They’re decided, but they ain’t tellin’ us.
Also, it’s odd that Andy would make the argument about voter volatility when he himself has measured how strongly convinced so much of the electorate is.