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.
Where does Zogby say Bush is leading? I heard Kerry leading in all battleground. Is it a Texas thing? I looked over the site. I read on Kos that early voting favored D. Can someone find some public data?
Here are the new battleground states according to Zogby:
Four New Battleground States
Colorado – Bush 2000
Arizona – Bush 2000
North Carolina – Bush 2000
Virginia – Bush 2000
I find that surprising the positive Bush vote reports given the poll trends. NC? VA? In Play? With R incumbent? This is amazing.
And the real Big Dog is on the case – Bill Clinton in action.
Excellent news to see OH moving in Kerry’s favor. We get Ohio or Florida, and it’s a done deal. I think the seniors in Florida will break for Kerry giving us the edge their as well.
It was so hard to see the country clearly in Bush’s favor months ago, praying that people would wake up and see things for what they were. I believe deep down that most everyone believes that Bush mislead the public while he “rushed to war in Iraq”, but that they did not want to fault a United States President for something so horribly wrong. It was almost like they themselves would have to admit they were wrong and partly to blame. Now, with the debates done, people are making decisions for whatever reason they use to justify, but again, deep down, they are voting against Bush because he has lost their trust and can not be trusted as a Commander in Chief.
Look for a significant shift in the polls after this weekend. I look for one more event to effect this election, hopefully it will be a leak or something that is damaging to Bush and then it’s lights out for the Bush experiment.
Point of curiosity. In Zogby today, those who have already voted are 50-48 Bush leading. Where is the majority of early voting going on? Is this significant? Zogby stated that two things that bear watching are this figure, and the newly registered voters being overwhelmingly for Kerry, but I had just assumed that early voting would tend Democratic.
A.
I’d add to this list that SUSA shows the Bush lead at only 3% in North Carolina. Their poll from two weeks before had Bush up 7%. Maybe this is another option for an upset…
Slate gives a list of 10 states that are the tightest. 4 are Bush 2000 states, Ohio, Florida, New Hampshire, and Nevada. 6 are Gore 2000 states. Wisconsin, Iowa, New Mexico, Maine, Pennsylvania, Minnesota.
They then give 9 for possible upstates. 5 are Bush 2000 states. Colorado, Missouri, West Virginia, Virginia, and Arizona. 4 are Gore 2000 states. New Jersey, Michigan, Oregon, and Washington.
Of these last 9, all are described as safe or pretty safe to go the same way as 2000, except WV and Virginia. So…Virginia is starting to get some press. That 4% is pretty remarkable. With 13 EV’s, that would be one heckuva a big pickup. Great news.
From the SimonsWorld blog (via Andrewsullivan.com)
Interview with John Zogby, who expressed the following views on the election:
[…]
The Running
* The race is Kerry’s to lose, barring unforeseen events. If he loses, it is only his fault.
* Why? Because Bush’s numbers have not gone above 48%. Three other key polling indicators are all terrible for Bush amongst undecideds:
– Presidential job performance: 35% positive versus 60% negative
– Is the country headed in the right direction? net negative
– Does the President deserve re-election? 15% yes versus 40% no.
These numbers have always been net negative for Bush amongst undecideds. The last 3 Presidents with those numbers were Carter, Ford and Bush snr. None won.
* Another reason: undecideds tend to break for the challenger. Zogby sees them going like in Reagan in 1980, so that the margin is 2% but it is the same in each key state and it is in favour of Kerry, thus the Electoral Vote ends in a decisive victory.
* A higher turnout favours Kerry. 2000 election had 105 million voters. Anything over 107 million this time and Kerry will win.
* The youth vote: always heavily Democrat, this time the youth vote are unusually motivated and may turn out in bigger numbers than expected, tipping the race to Kerry.
* If the focus of the final two weeks is the War on Terror —> Bush wins
If the focus of the final two weeks is Iraq and/or domestic issues —> Kerry wins.
* If the result is like in 2000 there will be masses and months of litigation. Neither side will back down and it will be complete chaos, far worse than 2000.
Nader
* Nader is a spent force and irrelevant to the campaign. He does not take votes from Kerry.
* Voters for Nader would otherwise have not voted at all, so no loss to either side.
I second Greg’s comment. Why doesn’t Virginia get more attention considering the race is as close as other battlegroudn states? I’m biased, of course: I live in Virginia and I’m working to help him win Virginia. But what’s the argument over ignoring Virginia and pursuing Missouri or Colorado?,
RT
I’ve heard this before and in other elections. Evidently the kids are reflecting what they hear at home.
Kids Pick Kerry to Be the Next President (AP)
AP – Kid power! Democrat John Kerry is the winner, and the rest of the country should pay attention because the vote on Nickelodeon’s Web site has correctly chosen the president of the United States in the past four elections.
Yahoo! News | October 20, 2004, 11:01 am
Why isn’t the Virginia number getting more attention? If PA and OH are competitive swing states with similiar spreads, why not VA?
Obviously, given it’s history VA is traditionally more red, but still, I’d love to see the headline “Bush vulnerable in VA”