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.
One other comment in response to Doyle’s very good questions:
Using McDonald’s measure of the voting eligible population (at elections.gmu.edu), I find that turnout increased markedly in battleground states but not elsewhere. Turnout rose about 5 points in 11 battlegrounds but was essentially flat elsewhere. In the most hotly contested states such as OH and FL, turnout was up more like 7-8 points. But in lopsided states like CA turnout actually fell. This prevented the national turnout total from setting any records.
OK, here’s a question I hope someone can answer:
Let’s say voter turn-out actually WAS ~60%. Let’s say it was ~50% in 2000. That’s 20% more people – a good-sized increase, but not HUGE. So why were there ENORMOUS lines? I live in Ohio (sorry everyone – we tried) and I’ve never waited in line before, but this time it took almost 90 minutes, and I was one of the lucky ones. I’m sure everyone has seen or heard about the people (in mostly minority and/or college-age precincts) who were in line for 6 hours or more.
But I’m not really accusing anyone of anything (though I’m not letting them off the hook either); mostly I’m just looking for why 20% more people = 1000% more waiting in line.
There are some interesting analyses of data being performed on voting boxes in Florida. I hope you’ll be reading them before further concluding that the compass is properly calibrated towards true NORTH.
A compass isn’t much good if it is off, and while presuming the integrity of the electoral process is one approach, another is to look at the data and see what they say.
Well, one thing is absolutely clear from this election. Higher turnout in and of itself would have meant absolutely nothing.
Some experts predicted that turnout would reach 120 million. So far, with the latest figures it’s at 115.4 million. So, if there were an additional 4.6 million votes and if they broke 55-45 for Kerry (according to the conventional wisdom about new voters), Kerry would only have picked up an about an additional 2.5 million votes.
So Bush would STILL have won the popular vote by about 1 million votes.
Nothing could be clearer. Technical strategies to boost turnout simply won’t work.
There must be a new strategic campaign to give voters a reason to vote FOR democrats and not just against Republicans, starting now and culminating on election day, 2008.
Randi Roades (Air America Radio) has some very important
information on their web site, regarding e-machines and steps that are being taken to have the Black Boxes audited for possible irregularities, several of which have already been found in Georgia and Ohio.
http://www.airamericaradio.com (link The Randi Roades Show)
or
randiroadesshow.com
I certainly want to be careful with this story, but there seem to be some troubling numbers with regard to exit polls being way off in ‘E’states and way accurate in paper ballot states… is anyone watching this? My latest post provides some interesting numbers…
To compare “apples to apples” so to speak (turnout in ’68 vs. ’04), don’t you have to adjust for the larger number of inelligible voters in both years?
I’m sure in the contested swing states that the percentage was very high. In my county in Wisconsin, turnout was around 80% of the census estimate for adults 18 and older.
Was the national average dragged down because CA, NY, TX, and IL were not competitive for the presidential contest?
Shouldn’t we simply be talking about the voting eligible population?
Brookings has something:
http://www.brookings.edu/views/papers/20040909mcdonald.htm
This was useful:http://elections.gmu.edu/voter_turnout.htm
And this was an valuable collection of state by state voter turnout against the number of eleigible voters….
http://elections.gmu.edu/Voter_Turnout_2004.htm
I wanted to see how being a “swing state” influenced voter turnout–e.g., Ohio was much higher than neighboring Indiana. I’d be interested to see a discussion of the entire 50 if someone is motivated and has time.
More than that, I was interested in how the averages would project. So, if we took the margin in California, and assumed it was representative of the real feelings of the state, and then calculated from the number of eligible voters how many would have supported each candidate, how does it spell out nationa wide? Is it enough to overcome the small-state bias?
Is the difference in turnout between swing states and safe states enough to explain the deviation between polls and the final electoral results?
Sorry, but for what possible reason would anyone quote turnout as a fraction of a population that includes ineligible voters? The only statistic that makes any sense is the fraction of voting-age American citizens, and I’m sure that’s what the Times meant when they wrote “voting-age population.” Perhaps they chould have been clearer, but I can’t interpret it any other way. And the fact that their number agrees with yours when interpreted that way seems to bolster that interpretation.
To be fair to the Center that put out the estimate, I’m pretty sure they first reported the 59% number as a percentage of “voting eligible population,” not voting age, and this was reflected in the first wire stories I saw on it. It may be that the later newspapers that wrote it up didn’t notice the distinction.
http://www.petitionspot.com/petitions/deanfordnc
Howard Dean for Chairman of the Democratic National Committee
By Jason Gooljar
It was a solemn day the crowd gathered around the stage where the candidate was to give his concession. Smiles were on the faces of some, while tears fell from the cheeks of others. Rhythmic applause could be heard erupting from the people all in unison. No, this was not the election night of November 2nd , 2004. This was Howard Dean back in the winter about to end his primary bid. For some this moment can now be looked back on as the day we really lost the presidency to our own party.
It has been said “When you trade your values for the hope of winning, you end up losing and having no values — so you keep losing.” The truth has never been more clear than it is now. We must strengthen the newly found spinal transplant of the Democratic Party. We must now take a stand with our democratic values in tow. First, I’ll tell you what we should not stand for anymore. We can no longer be a party who has to move to the center. The right has never had to do it and neither should we. We can no longer be a party who is beholden to special interests. No more of the big money donors, there is a better way. Raise the money from the grassroots.
We need real campaign finance reform. We need to be the party of inclusion and the party of the poor and the middle class. We need to go to middle America and talk to them about what we stand for. We need to show them that we truly have their interests at heart. We need to go to the evangelical Christians and have a real discussion about America. We need to have a real discussion of religion in America. We need to re frame the debate from our perspective and not reinforce the conservative frames already in place.
When Goldwater lost, his backers did not give up. Goldwater actually lost badly. We have not been greatly defeated like they were. It took them forty years to build the machine they have in place now. We let them do it while we snickered at them and laughed at them for being extremists who would never hold power. They continued to work and they continued to organize. They started winning locally at the state level throughout the middle states and then they went national. They threw the moderate republicans out in favor of the new conservatives. There is much to learn from our opponents indeed.
As we rebuild our party we must keep some things in mind. The neo conservatives do not have absolute power. There were millions of Americans who voted against this President. We still have the power, you still have the power. We as the progressive movement can no longer be afraid of losing. In order to win you must loose. As long as you keep your values when you loose you can continue to fight on. If you give them up you have nothing. Either we as the democratic party stand for something or we stand for nothing at all. After all why vote for a right wing lite party when you can vote for the real thing as middle America did.
Terry McAuliffe’s strategy had major flaws in my opinion. The tactic of a shorter primary in my opinion was not a good idea. We could have used the time to truly prepare our national agenda. We could have used that time to allow our democratic ideals to take forefront in the media. Chairman Mcauliffe is an incredible fund raiser this has been said but he lacks the vision to take this party in the direction it has to go. It has also been said that his agenda did not truly involve the south.
With all of this being said I’m asking the people who voted against this President to ask the DNC to elect former Governor Howard Dean as the new chairman of the Democratic National Committee. Howard Dean has a clear vision of where this party needs to be headed. We need his guidance to achieve our goals as a progressive movement. If we loose in the interim if we stay together as a movement we can shoulder the losses and eventually trumpet the wins. I’m asking for the people to write letters to the media and call elected officials in the democratic party to push for election of Howard Dean as the new chairman of the DNC.
If you care to know why we’ll lose again in 2008, read Thomas Frank’s essay in the NY Times:
http://www.nytimes.com/2004/11/05/opinion/05frank.html?pagewanted=print&position=
Frank is the author of “What’s the Matter with Kansas?”
If you care to know why we’ll lose again in 2008, read Thomas Frank’s essay in the NY Times:
http://www.nytimes.com/2004/11/05/opinion/05frank.html?pagewanted=print&position=
Frank is the author of “What’s the Matter with Kansas?