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.
Its obvious that the press is not willing to go ahead and declare Kerry an outright winner of the debates and the person carrying the momentum at this time. I am not sure whats up with that, maybe they think there will be some bad reprisals if Bush got his first elected term in the HOUSE.
No matter what the press thinks or does however, its common knowledge that the electorate has assured Kerry that he won the three debates by wide margins.
In like manner, the electorate, by way of the polls, are also showing that they are learning to accept Kerry’s demeanor, his mannerisms, his style, his obvious honesty, his thorough knowledge of the English Language and how to use it, he wide knowledge base on relevant issues etc.. etc.. etc.
I guess Bush and his troop didnt quite expect to find another person on earth who would know more English than Bush himself, well they now know its not so.
Its early days and one should never fall into the pitts of over confidence and must stay on tract and keep the momentum going all the way to this time four years from now.. but, while you are at it, take some time to savour this moment.. it creates a most excellent feeling.. so why let it slip away!!!!!
Let’s not be to overconfident. We have Mo but I think we are in for all slime, all the time for the next 19 days. The only thing they’ve shown they have in their bag is to paint Kerry as a traitorous turncoat. The Swift Boat deal over again with much more money behind it. They have to make it uncomfortable for people who have begun feeling good about voting for Kerry. I hope Carville and his crew are ready to fight back and put these yahoos on the defensive.
I fear that election day may be so dirty, we’ll be looking at Afghanistan’s vote as a shining example of democracy.
Demtom:
They still have doubts about his replacement. They always do — even such lionized presidents as FDR, JFK, Reagan and Clinton were widely disaparaged/wondered about prior to their first elections. But the voters went to them ultimately because they thought change was necessary.
As usual, Demtom hits the nail on the head. The main thing Kerry had to do in this race was prove himself as a viable alternative to Bush, and he did so with flying colors in the debates.
The media will likely make it seem, when he wins, that the debates did it. Not totally true, but I do agree that it was the debates where the Bush talking-points were shown for the nonsense and fluff they were all along.
I thought Kerry did another solid job in the third debate, and deflected Bush’s criticisms when they verged upon saliency. Barring wild surprises, all Bush can do now is cry wolf (“he’s an anti-security liberal who can’t pay for his promises!”), pray something sticks (the “Tony Soprano” line tells me it won’t), and carry out his ground war. So long as Kerry and those of us supporting him keep up his good fight, this election is ours to win.
I agree with Demtom’s observations about the media. The narrative seems to be taking hold that Kerry’s campaign was drowning until two weeks ago when the debates started, giving him a life raft. In fact, throughout September Kerry was behind but still very competitive in most polls. The ones that pointed to a Bush blowout (which were often treated as gospel by much of the mainstream media) often used dubious samples and methodology, a point that we argued on these boards in great detail.
In a sense I do wish we could have even more debates, but in another sense I don’t. It’s really nerve-wracking to worry about your candidate making a fatal gaffe with all the eyes of the media and the nation focused on you, and in the debates all it takes is one ill-considered sentence or answer to do that.
John Kerry to me is an acquired taste. Unlike Bill Clinton, for example, he does not go to great lengths to try to get you to swoon over him the first time you see him. His entire approach to campaigning bespeaks a kind of faith in the old verities our mothers told us about how, in the end, character is what counts, and that if you’re a good egg the people who know you will come to know that. In our age this bespeaks a bold, one might almost say daring, faith in the ultimate good judgment of the voters. A concern his approach creates among his supporters is whether voters will acquire enough of a taste for him in time to vote for him. My perception is that over these debates Kerry is winning a lot of folks over, slowly but surely. For when it comes to John Kerry, the surprises are pretty much all good ones. He turns out to be the sturdy, reliable, steadfast friend, the one whose advice you might seek out on an important matter or who you’d want to be your best man–not the hell-raising party animal you met in college who, a couple of years after graduation, remains most notable to you for being–the hell-raising party animal from your college years.
To those inclined to vote for Bush because they think he is more the kind of guy they’d like to have a beer with, I’d say vote for Kerry. Although I hope Bush does not go back to drinking after he leaves office–this being unbecoming behavior from a former President–it will free up more of his time for informal, unscripted social occasions.
If Kerry wins 19 days from now (which I think is an ever-increasing possibility), the media consensus, I’m certain, will be that he won because he won the debates. Some will probably go further — taking the goosed post-GOP convention polls as gospel, they’ll proclaim that Kerry was “on the ropes” until extricating himself with a knockout first debate and solid victories in the later two.
I’m not about to argue with the fact that Kerry has done better in all three debates — he’s smarter, more presidential, all those things. But I’d argue that an opposite dynamic is actually at play: Kerry’s going to win the election, and that’s why he’s won the debates.
The voting public is not as shallow as the media conglomorate like to believe; they don’t switch votes based on a stray catch-phrase, a bad camera angle. They make their Election Day decision not on assorted trivia, but on the basics of presidential performance: how’s the economy? What’s our status in the world? Are things going well? On all those scores, Bush has been losing ever since Iraq started to go south. The continuing sub-par recovery in the economy keeps Bush on the defensive in another vital area. But for a few, artificially (and typically) inflated polls right after his convention, Bush has polled below 50% (including a shocking 43% from CBS the other day). The public WANTS a new president.
They still have doubts about his replacement. They always do — even such lionized presidents as FDR, JFK, Reagan and Clinton were widely disaparaged/wondered about prior to their first elections. But the voters went to them ultimately because they thought change was necessary.
Kerry did well in all the debates, but all he really needed to do was meet a minimum standard. Once he did that, the voters were going to judge him the winner of the encounters, because they have already deemed Bush’s POLICIES a loser.
Another beatdown. I think we’ll see Kerry moving up in the polls as this final debate settles in people’s minds.
“Wonder how that [ABC] poll would have turned out without an 8 point Republican party ID advantage.”
We can do a rough calculation of how the ABC poll came out for independents.
Respondents: 38 R, 30 D, 28 I
Results: 42 Kerry, 41 Bush, 14 tied
Assume that R’s backed their man and D’s the same. (Probably some deviation on both sides, but it likely cancels out.)
Then: 12 (42-30) Kerry, 3 (41-38) Bush, 14 tied
Changing to %ages: 41% Kerry, 10% Bush, 48% tied
(Numbers do not add to 100% due to rounding.)
Well, I actually watched the debate. I thought Kerry absolutely owned the first thirty minutes of the debate and dominated Bush. I thought Kerry’s victory in this debate was more pronounced than the first debate (which I thought was closer than the blowout it is now regarded as). I am not at all surprised at the instant poll results. My non-political sister called during last night’s debate to express how stunned she was at Bush’s lousy performance (she didn’t watch either of the first two).
I think the talking heads are so used to Bush’s eccentric mannerisms and lack of speaking ability that they don’t realize how off-putting he is to watch unfiltered. It is for that reason (along with their being afraid of accusations of liberal bias) that the “analysts” right after each debate have acted as if the debates have been a draw, when they weren’t. The nightly news edits out Bush’s awkward moments, which makes him look a lot smoother than he actually is. The debates shattered that media-created image.
It really was a trip to the woodshed for poor W. Tim Grieve sees big trouble ahead for Bush’s ratings in his just-posted article on Salon. (Get the day pass if you don’t have subscription).
I didn’t watch the debate, but — judging from a number of [mostly-] widely divergent blogosphere comments — it seems it was basically another draw. I would have preferred a sub-par “Shrub” performance, but unless the post-debate spins against JFK, I think he can live with this result. After all, the polls indicate a a majority of viewers felt Kerry’s performance was more convincing. Again.
—
Predictably, wingerville is hyping the “War President’s best-ever debate performance” but I suspect there is more than a little bit of wishful thinking/desperate spin going on.
MARCU$
I thought the comments for this topic were especially on target.
Kerry has sealed the deal with voters.
Bush has shown the voters that his best is mediocre, and it goes downhill from there. Kerry has done the opposite. Suddenly, $100 million of negative attacks rendered meaningless.
Bush’s attack lines have been reduced to cotton candy, with equal weight.
HA-ppy – days -are -HERE a-again!
The skys above are CLEAR again,
So, let’s sing a song of CHEER again.
HA-ppy DAYS are here a-GAIN!!!
[Release balloons, cue the band]
How can you support Bush when he lied to you again within the first five minutes of the debate. I remember clear as day that man said he was not concerned about Osama Bin Laden. Cheney lied about never meeting Edwards before until their debate. If they lie about these petty things what else are they lying about and to what extent will they take thier conserative views to. No child ;eft behind? My little brother was in second grade and could not read, why? Because he did not have a spelling book- if you can’t spell you can’t read. Bush said himself he can’t speak english as good as his wife. I think Bush needs to be left behind.
I agree.
This third debate is where Kerry sealed the deal.
He proved that he is presidential, can laugh at himself and Teresa, and will lead the country in a better direction.
Bush proved that at the top of his game, he’s weak.
I think we will see the polls solidify for Kerry.
CNN/Gallup poll even more impressive: a 14% Kerry win.
Kerry scored a clean win tonight, and ends the “series” 3-0. In all three debates, he looked more presidential than the president, and he calmly, methodically and forcefully dismantled every single element critical to Bush’s reelection chances. The polls have been starting to move in Kerry’s direction and it seems likely that this performance tonight will only accelerate that trend. As a Democrat, I am a happy camper tonight. Let’s roll up our sleeves, do the the work that still needs to be done, and bring this baby home.