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.
Stephen,
I wish I could say. I know that they lean conservative as a site. I believe that they use a pretty consistent rule for deciding what poll gets included. I found it somewhat unsettling that the ICR poll got included only when it showed Bush leading more than any other concurrent poll. I read their site, http://www.pollingreport.com, http://www.race2004.net, http://www.electoral-vote.com, http://www.electionprojection.com, and http://www.cookpolitical.com, as well as this site. Then I try to come to a common conclusion across these sites. It’s clear that all show the race to be close. Jeff’s point on another thread about turnout seems right on target. Beyond that, I think there are others here far more expert than I on such matters.
In the meantime, enjoy a pint of someone’s best bitter for me. There’s nothing quite like it.
A question from London. Watching your polls in the Us with great interest. Can you give me an assessment of the way in which the realclearpolitics website posts polls. Are they, as they say, ‘seekers after truth’, or are they biased, conscious or not?
Best,
Steohen H.
It’s a conservative site, but realclearpolitics has a nice analysis of the state of the electoral vote.
For Kerry, it’s all about Ohio, with New Hampshire and Nevada as secondary targets. They miss Colorado, either by outright win or by referendum getting him 4 votes.
For Bush, the targets of opportunity are Wisconsin, Iowa, New Mexico, and Maine’s more conservative district.
They given Florida to Bush and Pennsylvania to Kerry, for now.
Per this analysis, for Kerry, losing Ohio means he has to get New Hampshire, Nevada, and some Colorado votes, while holding New Mexico, Iowa, and Wisconsin.
If he wins Ohio and New Hampshire, even if he loses Wisconsin and the Maine district, Kerry wins, if he can hold Iowa and New Mexico.
So…it seems time to focus on Ohio, New Hampshire, Nevada, Colorado, Wisconsin, Iowa, New Mexico, and Maine.
In the back of my mind, I see some opportunity for Kerry in Missouri, Arkansas, West Virginia, and Florida, and some danger in Minnesota, Oregon, Pennsylvania, and Michigan.
All I am going to say is that in doorknocking and registering voters. I have reached and registered people without phones who are adamantly opposed to Bush.
If the dems turn those voters out to vote GWB should be very very afraid on Nov 2……
Gallup would never try to develop a model to sample the phoneless…
Post Debate 2: We did well enough to keep the Big Mo’ so let’s keep at it. GOTV is crucial. So enjoy the post debate glow, and if you have not done so already, sign up for GOTV drives.
SJ-
Sorry, I fail to see the problem with choosing a sampling from people who watched the first debate. Anymore than I fail to see the problem with sampling only people who watched either one of the debates, no matter what the outcome of either one. It’s just as valid an assumption that people who watch the debates are likely voters than any criteria Gallup is using. What seems to be your main gripe is not the methodology, it’s that it shows Bush doing worse than all of the other polls (except those you arbitrarily dismiss as “partisan”).
But all of the polling shows that even a majority of Republicans felt Kerry did better in the first debate, so it does not defy reason that Kerry would score somewhat higher with the subset of people who watched that debate. Likewise, if Bush did better in that debate it would likely show him doing better overall than other polls that did not only sample that subset. I doubt that Ipsos knew going into their polling that Kerry would “win” the debate, but conspiracy theorists might believe that.
ARG and Zogby are Dem polls? I must’ve missed that. BTW, go ahead and ignore the AP poll if you want. Every other poll shows the race basicallly tied and Kerry with all the momentum. Tracking polls have him gaining, and even the Time poll that had Bush up 12 a month ago has it tied.
As for state polls, that poll for Colorado you dismiss is by Gallup, which is hardly pro-Dem. And most of the states Mr. Abramowitz cites have multiple polls, which he averages, hardly a Dem conspiracy tactic to boost Kerry.
The race is far from over, but Kerry’s debate performance has changed the dynamic, at least in the short term. Anyone who can’t see that is in denial.
Smooth: I suppose you also wouldnt change a thing about Iraq and that the economy is turning a corner. Are all of you in complete denial?
What happened to MO, NV, OR, & WV? These four states also appear to be swinging.
Jazz’s comments are somewhat valid, but let’s limit the reposting of an entire link.
-DS
There is no question, despite the protestations of Smooth Jazz to the contrary, that Kerry is on a roll. Smooth Jazz discounts as partisan polls that give him bad news like Zogby. Smooth Jazz should be aware that Zogby called both the 96 and 2000 elections accurately. While showing Kerry ahead in the battleground states Bush has a 1 point lead in the popular vote. Instead of trying to go to great lenghths to debunk polls that he doesn’t like he should go back to the right wing web sites and figure out what to do about it. It seems to me there is only one valid point to make about these polls and it comes out on the Democratic side: If the reports about new registrations are accurate in Democratic areas of battleground states and a reasonable number of these new voters turn out, pollsters just may be UNDERESTIMATING support for Kerry. Whatever the argument we will find out for sure on Nov. 2nd providing ALL legitimately cast ballots are counted this time.
Jazz, there’s some food for thought here. However, one word: hyperlink. Learn it. Live it. Embrace it.
Smooth Jazz-
That’s potentially interesting news on Ipsos. I went to the website, but would have to pay to actually use it.
As you point out, there report comes from a Bush partisan, so perhaps should be taken with of salt, though I’m sure he worked very hard at it.
It’s particularly interesting to me that he only selected 6 polls to look at as the non-Ipsos. At the RealClearPolitics site, I see 10 polls conducted post-survey, using a 3-way race. From these, I get a Bush lead of 48.0-45.9, which is a bit closer than the author’s 49.2-45.5. He wouldn’t by any chance be inclined toward cherry-picking would he? I’m perfectly willing to believe that Bush is up by 2.1% at this point. In fact, if I add in the two Ipsos polls (using two-way numbers from the AP one, since they seem not to have gone three-way), only narrows it to 47.6-46.3. If he’s interested in fighting over a difference of less than a percent in the Bush lead, he should be my guess. Seems like a sign of desparation to me, though.