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.
Kerry is putting it away tonight.
Kerry is competent again, and Bush is uneven and has made some big mistakes. He really blew it on immigration, religion, and Social Security.
Looks like Kerry is now up in LV’s too in the WP poll, and gained a bit in LV’s in the ABC poll (the two polls use the same data, but interpret it differently based on their own formulas).
Lets hope Kerry can put it away tonight.
Alan,
This does not seem like a likely answer. The Republicans are certainly engaging in dirty tactics but it seems implausible they would tell Gallup what they are up to and the number of Dem votes they are trashing.
I have not seen a good answer to the question of why Gallup (and other polling orgs) are skewing their results so strongly to the Rs either in LV/RV or in party identification. So, anyone? Alan’s thought is maybe just too disgusting for me to want to believe. Also, the sheer amount of the skew is too large to be accounted for by dirty tricks in some swing states. Is Gallup hoping to scare Dems into fight harder? Do they want a close race to improve news ratings (my fave since news orgs buy the Gallup results)? Is Gallup hoping to get more Repubs into office by creating making them appear stronger than they really are?
I am surprised to see Alan Abromowitz stating that GOP turnout has exceded Democratic turnout in recent Presidential elections. I thought that Democratic voters had exceeded Republican voters by about 3 points in recent presidential races.
coldeye and gabby,
Marshall has followed up with this link to a report from Oregon, confirming what coldeye wrote:
http://www2.kval.com/x30530.xml?ParentPageID=x2649&ContentID=x47627&Layout=kval.xsl&AdGroupID=x30530
The head of the canvassing group used to be executive director of the Arizona state Republican party. Reports are that the GOP funded his group, though the Oregon state GOP denies that he worked for them. There’s a report that the same organization (Voters Outreach of America) is also active in West Virginia.
From a link posted on TPM:
Bush concedes PA?
http://www.pnionline.com/dnblog/extra/archives/001039.html
Those of us here in Pennsylvania may not have George W. Bush to kick around anymore — at least not in person. The New York Daily News — which
is traveling with the President in Arizona today — says that no Pennsylvania TV markets were in Bush’s top-ten spending list last month, and an aide has told the newspaper that no visits from W. to the Keystone State are in the works anytime soon.
Don’t be so quick to dismiss Gallup’s methodology on LV. After all, they probably know what the Republicans voter suppression strategies are. In term of voter turnout, this analysis is likely correct. However, many of the democaratic voters who turn out may end up not being able to vote, and many of those who do vote may not see their vote counted.
Gallup is probably relying on Republican inside information in coming up with its LV numbers.
News flash — the Chicago Tribune released separate polls today for the midwest battleground states (IA, MN, WI, OH). They show Kerry ahead of Bush by 2pts in OH and MN, and 4 pts in WI! He is behind by 2 pts in IA. Plus, there were 5-8% undecided in each state — that basically translates to an extra 2-4 points on Kerry’s side of the margin. Plus, these results are for LVs — can’t find RV results, but those are very likely even better, since Kerry has been stronger among RVs than LVs all season.
Only one set of polls, but still VERY encouraging — are the Cheeseheads finally coming home?!
Midwest Meg, I think Ruy has said the last week or so is the time when the LV is most useful, but only as the race actually closes.
Tony, that news is truly distressing. They’ve always engaged in dirty tricks, but this time the army of Bush brownshirts is a reflection of the men at the top. This time they flaunt the law in a cavalier fashion which reveals their true nature as anything but American.
Tony,
We’ve seen the same tactics here in Portland, OR. Groups collecting registrations and throwing out the Democrats.
Ruy-
Thanks for the RV data. I tried looking for RV info online yesterday and could only get LV.
Various-
This will be somewhat off topic, but speaks to some of the challenges we’ll face on election day.
I just got this from Josh Marshall’s http://www.talkingpointsmemo.com site. Apparently the GOP has paid some people to go get registration cards from potential voters, and then they tear up those who register Democratic. There’s some evidence of this from Las Vegas. This strikes me as the sort of dirty trick that could get very intense attention very quickly.
Marshall got the report from this site:
http://www.klas-tv.com/Global/story.asp?S=2421595&nav=168XRvNe
Here’s a quote from the article:
“We caught her taking Democrats out of my pile, handed them to her assistant and he ripped them up right in front of us. I grabbed some of them out of the garbage and she tells her assisatnt to get those from me,” said Eric Russell, former Voters Outreach employee.
Eric Russell managed to retrieve a pile of shredded paperwork including signed voter registration forms, all from Democrats. We took them to the Clark County Election Department and confirmed that they had not, in fact, been filed with the county as required by law.
In Ruy’s opinion, at what point in the campaign are LVs the more reliable polling group than RVs? Two weeks from election day? A week before?
Or does conventional wisdom not exactly apply in this election, which looks like it will draw a huge number of first-time or occasional voters?
Does anyone know whether the polls pick up or distinguish how many people voted early? I remember reading articles about several states where people could vote as early as the beginning of September. If that vote was heavy, when Bush had his huge bounce, it could matter. Is there any data?
Who actually performs this poll? Is it Zogby, who I respect? Interesting article on Zogby in new New Yorker.