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.
The last 2 polls in NJ prior to this show a 5-8 point lead for Kerry in NJ. Q* is showing a 3 point lead for Kerry, whereas they earlier had it a tie, so Kerry has picke dup 3 points.
There are plenty of reasons to believe NJ will be closer than in 2000. But Gore won by 16 points. Kerry can give up half of that and still win.
SJ — nice work desparetly spinning.
Rawls posted an interesting Missouri poll from surveyusa.com.
In looking at it, there’s an interesting data point; on page 9 of 25 of the doc, it indicates that voters who identify themselves as Military/Veterans (I couldn’t find anyhting in this doc that elaborated on how they asked about that category) the two candidates were 48-48.
It’s only a data point, but if connected with others, it might suggest the interesting conclusion that Veterans/Military are less subject to the smaears on Kerry’s record than the non-veterans/military identifiers.
I dunno about you Smooth, but every poll I’ve seen from NJ shows Kerry ahead by 8-10 points.
Frankly, I feel sorry that you fell for Bush’s “blue feint.” Last time it was CA, this time NJ. This is a classic Bush tactic. Like when he campaigned (for governor) in strongly Democrat El Paso, but lost El Paso County anyhow.
> If Kerry is barely tied in NJ, he is NOT tied nationally.
The operative word being “if.”
Hi Ruy,
Just thought I’d bring this to the attention of your board: We’re still in it in Missouri.
I wish the Kerry / Edwards campaign would come to Missouri instead of writing us off. Its a neck and neck race here and we could use some coattails.
http://www.surveyusa.com/2004_Elections/MO041005wpresvgovysenx.pdf
A bit more detail:
Coldeye gives the “nearest integer” figure from Rasmussen’s homepage. The “daily snapshot” in the Premium Members’ area has a Bush lead of 0.3%, down from 0.9 yesterday; but in the 16 Batleground States Kerry is actually up by 1.5.
RV: 48% Kerry and 45% for Bush ?
LV: 47% Kerry and 46% Bush?
That does not sound like a tie to me. It sounds like a slim lead. But I am no polling or statistics expert.
I understand it is difficult for Republicans to face the fact that Kerry is improving in the polls as the Quinnipiac Poll points out.
Smooth-
I’m sorry, New Jersey has just as much a chance of going for Bush as Georgia does for Kerry. There’s no chance it will happen.
Also, Rasmussen also has the race finally tied again. It remains to be seen whether Kerry will regain the lead in that poll as well.
Today’s Rasmussen tracking poll has Kerry pulling into a tie with Bush for the first time since the Repub convention.
Bush’s approval rating declined significantly as did his ratings on the economy and Iraq.
Oh well, Here we go again: The Mass/NH based ARG poll with the obligatory Kerry “lead”. Read my bytes: If Kerry is barely tied in NJ, he is NOT tied nationally. To Wit:
http://www.quinnipiac.edu/x11375.xml
(Note: Click on the Oct 6 link)
Quinnipiac University
Oct 6, 2004
Polling Results
October 6, 2004 – Debate Gives Kerry 3-Point Edge In New Jersey, Quinnipiac University Poll Finds; But Voters Say Bush Acts More Like A Leader
Democratic challenger John Kerry has moved into a very narrow 49 – 46 percent lead over President George W. Bush among New Jersey likely voters, with 2 percent for independent candidate Ralph Nader, according to a Quinnipiac University poll released today.
This compares to a 48 – 48 percent Bush-Kerry tie among likely voters, with 2 percent for Nader, in a September 21 poll by the independent Quinnipiac (KWIN-uh-pe- ack) University.
Among registered voters backing President Bush, 82 percent say they are voting more for the President. Among Kerry supporters, 42 percent say they are voting more for the Democrat while 52 percent say they are voting more against Bush.