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.
zogby poll out saturday will have kerry up 2 in fla.
I live in Milwaukee–and have for the better part of 50 years. Sen. Russ Feingold (“McCain-Feingold”) is running for a third term against an opponent that is far right (to give you an idea how far: no abortion for ANY reason, period) and will win a relatively easy victory. I cannot imagine there will many “Bush-Feingold” ballots. The 4th Cong. District that is essentially the City of Milwaukee has an African-American woman as the Dem. nominee. Of course, this will spur voter turnout in the Milwaukee inner-city.
As far as zeitgeist is concerned, yesterday Kerry had the biggest political rally in state history in Madison, and the Milwaukee Journal (the state’s largest newspaper) endorsed Kerry in a long editorial. There is much more. But, Wisconsin is a state that I know well, geographically and politically. Kerry doesn’t get a free ride, he has to earn his votes. But, I just don’t see it happening for Bush. If, despite everything, Bush somehow wins Wisconsin, then simply color this state “red” for future elections. There is NO reason to believe this is the case.
My only fear is that Most of the states in play seem to be traditional Democratic ones. If Kerry takes the four then great (he could even lose Hawaii and one of the Maine districts and still hit 270 on the nose). But just losing one of FLOHPA makes the matah really tough. I’m not saying he can’t/won’t win, it’s just the battle seems to be uphill. Trying to keep my chin up though.
Wisconsin is turning out to be key.
Bush’s strategy is to take Florida, Iowa, and Wisconsin, figuring they will probably lose in Ohio and Penn.
The Wisconsin polls look slightly better for Bush right now, although I don’t think slightly better is good enough to carry it for him in a big turnout election. The point is, it’s a very strategic battleground state.
Back to national polls for a moment. For my course (I am a political scientist) I compiled data on the national horse-race going back to April. While trying to pick trends out of this polling data is risky, given how much the polls diverge from one another, something interesting seems to be happening.
If you graph over time the share of the two-party preference (i.e. throwing out undecideds and third-party supporters) that Bush is getting in the RV polls, the two candidates are getting closer to parity in the last week.
But if you go by the incumbent’s share of all RV respondents (i.e. including undecideds and others in the denominator), Bush is getting closer to 50%.
In other words, if these are real trends–a big if–the chances that Bush could win the popular vote are increasing. But, paradoxically, the race is simultaneously tightening, meaning a split of the popular and electoral vote could be getting more likely. All the more so given Kerry’s lead in state polls of several key battleground states that we have seen posted here.
The graphs I refer to are at http://irpshome.ucsd.edu/faculty/mshugart/pmp/links.html, at the link entitled “2004 polls update.”
While all this information looks good in favor of Kerry, we have to remember that there are even flaws as of now with Florida. Lets cross our fingers they can get it right this time
Any new numbers about the north central states, Minnesota, Wisconsin, and Iowa? I think Kerry can be still have the edge without Iowa, but the other two have me nervous.
This late news from Hawaii is troubling too. What’s up with that?
No one’s panicking here, just curious.
Wisconsin? What about Wisconsin?
Kerry can take OH, PA, MI, and still lose without Wisconsin.
(And the Dems are spending $250,000 this weekend in … Arkansas.)
Hope you’re right about Florida .. and that Dems’ votes get counted there this year!
I noted the source for all data here is pollingreport.com. The LA Times web site has an interactive map based on pollingreport.com data. (I think, but may be wrong, that gives non-members access to their members only state-by-state polling data.) The map is a lot of fun because you can color it in based on most recents polls in each state or based on your obsessive desire to see this destructive, arrogant, insular administration bounced out of the White House. When John Kerry gets to 270 it plays “Hail To The Chief.” It is at least as much fun as “How Can Gallup….”
So, if the incumbent’s lead holds in FL, it would seem that the the race comes down to WI (and perhaps even HI)?
Can one of you smart stat-heads put this talk about Hawaii to rest? …. Gore won by 20 or so points in 2000 … I simply do NOT believe that W is ahead…. I’m sure there is some kind of major flaw in this polling…. Any details?
Thanks!
eg
are the average of the polls weighted for sample size?
would it not make sense to add all the samplings together for a state and then determine percentages?
[or are all samples exactly the same size?]
would it make a difference?