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.
This math just doesnt’ work. If Bush is really up by 7, doesn’t that pretty much mean he would win NJ, NY, and maybe CA?
This is a repost–it’s here because it’s more germane…thoughts?
Data-crunching 101–an attempt at self-education
I just was dinging around (technical term, yes) with the results from the most recent Pew Poll, which found that 48 percent of 1,002 RVs supported Bush compared to 41 percent supporting Kerry. (http://people-press.org/reports/display.php3?ReportID=227)
Tell me if this was a sensible interpretation of the data, but here’s what I found:
Using a combination of the Pew background data (http://people-press.org/reports/tables/227.pdf) and a handy Java applet that solves linear equations with three variables (http://alumnus.caltech.edu/~chamness/equation/equation.html), it appears that the partisan split for the 1,002 respondents is as follows:
333R, 303D, 366I (basically 33%, 30%, 36%)
By comparison, I ran the same analysis for the 9/11-14 Pew survey (again of 1,002 RVs), and got a split of:
303R, 336D, 363I
Where I’m going with this is this: if the 10/4 poll had reached the same number of self-identified Rs, Ds and Is as for the 9/11 poll (assuming that it’s the sampling and not the self-identification that’s changing) with the voting tendencies of the 10/4 crowd, the 10/4 poll results would have been something more like 45.4-43.6 in Bush’s favor, not 48-41. One might then note that this shows a slight shift from the 46-46 split actually noted on 9/11, but by now I figure I’ve hopelessly tortured the data nearly beyond recognition.
Long story short, what I really wanted to explore and perhaps demonstrate is that the Pew poll didn’t reach the same crowd now as before, and that if they had spoken to a similar group, the poll margin would be even tighter. Please, someone who really knows what they’re doing, tell me if I’m playing along intelligently at home–mathematically, not politically, Smooth. 🙂
This poll gives very interesting education and income breakdowns. In the most recent poll, and some but not all of the earlier ones, Kerry support goes up with increasing education level and down with increasing income. If this is the composition of the electorate, the near-universal practice of weighting a poll to reflect education but not income will bias the results toward Bush. (See my posting last week which explained the mathematics.) I don’t know the magnitude of the bias because it depends on the size of the weighting coefficients.
Another very striking feature of these data is that the voting intentions of the high-income and high-education subpopulations are fairly stable, while there is much volatility at the low income and low education end. Since these are the populations that will be underrepresented in the raw sample, this behavior is suggestive of fluctuations in the calculated weighting coefficients that result from the ill-posedness of the estimation problem and the noisiness of the data from which they are estimated. (See another earlier post.)
Another possible explanation of the reported volatility of low-income and low-education subpopulations is that because of poor response rates they reflect small samples with high sampling error. (Each respondent in this group is highly weighted in reporting the overall poll results.) Very likely, both sources of error contribute.
There is absolutely no way in the world Bush is up 7 after the first debate.