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 analysis on where Bushs’ gains came from was not bad, but it did not include a statement of methods. In other words, the reader is left to wonder by what the author means by “half is gains,” and so forth. Are these headings meant to express percentages of electorial or popular votes?
This is not suprising. During election night, one analyist after another talked about the importance of Bush running up the totals in Red States in order to make his election win seem more valid. Now we know how.
PS…the power of war to trump class predispositions is not exactly new..recall the Great Socialist Sell Out in France and Germany on the eve of WWI among many other examples
War unleashes all sorts of powerful counterintuitive emotions and behaviors and Bush made the very most out of it he possibly could have
In 2002, the Beltway Democrats defaulted the War on Terror and the War on Iraq to Bush hoping that in doing so, OUR issues, domestic issues, would come to into play.
Though the party by fits and starts came to appreciate the wisdom of Rove’s “hit em where they’re strongest”, it never fully shed the former mindset and two years later and indeed in the last two weeks of the campaign, felt the effects again.
Bush’s greatest achievement was turning the War on Terror away from a fact based debate on its conduct and turning it into a cultural values issue.
The IraQ war opened a window for reframing the War on Terror into a general camaign theme centered on Bush’s lies and incompetence.
Just as in the Bushevik slogan..The road to Jerusalem runs through Baghdad, so did the Demo road back to economic issues.
Lies and incompetence was a theme that the Democrats failed to pick up until very late in the game. IraQ and national security attacks brought the campaign out of its August to mid Sept slide but there was no hook at the ready to enable Kerry to benefit from the momentum gained….and he desperately neeeded one because the economy, if the econometric models suggest, just wasn’t weak enough to drag Bush down…
The determinants of this election were in place last year and dithering with our old mindset, we failed to act in a timely fashion to change the game
I live in North Jersey and there is no doubt that the Kerry margin of 7 poi nts compared to the Gore margin of 16 points was due to the fear of terrorism,25% of the 9-11 victims lived in NJ. Also the McGreevey scandal cut into the Kerry margin.When I look at the next 4 years,maybe its a blessing in disguise. The economy is going to come crashing down on Bush’s head in the next 4 years and a Pres.Kerry,unable to raise more revenue by a GOP Congress would have had the same problems Bush will have in the 2nd term.Would Kerry have turned out to be another Carter,a victim of economic circumstances beyond his control?Of course we will never know but something tells me the answer would have been Yes.
It doesn’t make me feel very optimistic for 08 to know that Bush had gains that were as across-the-map as this entry suggests. And widely distributed gains tend to dramatically undermine the voting fraud argument since not all states were doing e-voting.
For those pursuing the evote fraud angle, here is another website. The author is a computer scientist who has been warning of the risks since 2002. They are not strictly fraud risks but there are inherent limitations in the confidence one can have in any computer program.
http://www.notablesoftware.com/evote.html
1/2 + 1/3 + 1/5 is greater than 1. Yes, I know yours is a rough approximation.
How come you have not discussed the possibility of voting machine Fraud in trying to explain the discrepancy between exit polls and actual results.
Even if there was no fraud, should’nt we have audit trails for electronic voting machines? It is really not hard at all to have these machines print out paper receipts. How can we call ourselves a democracy if we cannot verify that votes are counted correctly?
Diebold will not provide the source code because it is a trade secret??? Does this pass the laugh test??? A sophomore in computer science can write a program to total the votes correctly!
I await the county-level analysis with great interest. I’ve been thinking about Ohio, and used the 2000 Census data to get my thoughts in order.
Columbus is the biggest city in Ohio, the 15th biggest in the country (in 2000), and has suburban-exurban counties that are among the fastest-growing in the country. Anecdotal evidence suggests that Columbus, unlike northern Ohio, is rather prosperous. Given all these factors, a detailed review of voting patterns in such an area would be very informative. Note that David Brooks claims that just such places are where the Dems “just don’t get it” and the Republicans do. (NYT, Nov. 6). Nothing like real evidence to check such a claim!
I am very puzzled by the apparent contradiction between the exit polls and county-level results. Exit polls show Bush doing better in cities and worse in rural and small-town areas than in 2000. The county-by-county maps published last week in the New York Times show Bush and Kerry each improving their percentages where they had already been strong, except in three areas: (1) Bush did better in the coastal strip from Delaware to Connecticut. (2) Kerry did better in the rural swath from Minnesota to northern Idaho, where religious affiliations are more Lutheran than evangelical and there is a long history of isolationism. (3) Kerry did better along the Quebec border where Bush’s French-bashing could hardly have pleased French-Canadian voters.
One question: Could Bush’s urban gains and Kerry’s rural gains be artifacts caused by reclassifications of areas between the 2000 and 2004 exit polls? As a result of the 2004 census, have exurban Republican areas been reclassified from rural to suburban, and sunbelt cities reclassified from less than 500,000 to more than 500,000? It seems unlikely that such reclassifications could cause apparent shifts of the magnitude shown in the exit poll, but the question needs to be looked at.
Ruy,
I live in Florida, and was surprised how “red” we became given the 2000 vote. I know there was a big GOTV effort here and the negative adds were omnipresent. Do you have any insight into any other factors that resulted in us being so red this time? BTW, we had a hotly contested Senatye race and the Repub, Mel Martinez, won by only a slim margin (<200,000 votes I think).
How do these figures compare to the population distribution? From your description, it sounds to me like Bush’s margin increased by about the same amount in all three regions (red, blue, purple), but especially so in certain states (NY, FL, TX, etc.).
For example, you say that a fifth of Bush’s gain came from the purple states. But don’t they have about a fifth of the population? Or am I missing your point?
As to point 1, Bush did not in fact win TN by 6 or more points in 2000. He did make huge gains in our state, but we became a solid red state this time, didn’t start out that way.
More Analysis please
Thanks for the analysis. I’d like you to look into the area where Kerry got more votes, I assume that there are some counties, and thus demographics where Bush lost?
Also I’d like to have a statistical analysis of the importance of Demographic factors in the vote, e.g. that the best fit to the Bush/Kerry vote is based on a correlation of the form of:
. 0.80*(numer of times per year goes to church)
. +
. 0.30*(Lives in a red county)
. –
. 0.25*(Earnings in $100.000)
Note: The numbers and factors are not true, but just ilustrative of the way I’d like to see the influance of the various factors that seem to effect/predict Bush/Kerry, and of course even better, I’d like to see the same for Bush/Gore and Dole/Clinton, so that we can see what the important factors in peoples vote really is.
http://pages.ivillage.com/americans4america/id17.html
Kerry’s considering unconceding and having a recount. He asked people to send firsthand experiences of disenfranchisement to his brother’s law office and his office is eagerly counting calls that are encouraging him to unconcede and ask for a recount! There has been massive evidence of voting fraud (see bottom for links) and there are 2 organizations you can support to uncover hard evidence of this fraud.
In This Post:
(1) Call/fax Kerry’s senate office, the DNC, and the Ohio Democratic Party.
(2) If you have first handexperience of voter disenfranchisement (not just articles) contact his brother.
(3) Support Two organizations that are uncovering hard evidence of fraud: blackboxvoting.org and votewatch.us
(4) Kerry can still request a recount in Ohio (and he may have the best chance of winning with a recount there)and perhaps elsewhere! He has until they count the provisional ballots 11-15 days after counting the provisionals. (It doesn’t matter if he’ll have a hostile Congress to work with because even if he can’t get much done as president at least he would prevent the havoc and destruction of 4 more years of W in which our rights, environment,economy, social security, and our very lives are at stake!) .
When I called they put me through to someone who asked for my state: they seem to be adding them up! Contact Kerry at (202) 224-2742 – Phone (202) 224-8525 – Fax
email form:
http://kerry.senate.gov/bandwidth/contact/email.html
and urge him to unconcede and do a recount in Ohio (and perhaps elsewhere) Also contact the DNC about this since pressure from them either way would influence Kerry. This is their phone number: 202-863-8000 This is the page for their email address http://www.democrats.org/contact/
(5) If you have witnessed or experienced disenfranchisement you can contact his brother’s law office–they are collecting this information which will be vital in considering unconceding at CKerry@Mintz.com (Don’t just email articles or they will be inundated with emails. They already know about the articles.)
(6) Help These Two Organizations Prove Fraud
There is anecdotal evidence of widespread fraud with the paperless voting machines. There are two groups working to uncover hard evidence who need your support.
(a) Please support the work of http://blackboxvoting.org– which is the only group uncovering hard evidence of fraud of the paperless electronic voting machines–with donations and/or volunteer work–they need to raise $50,000 to file freedom of info act requests for as quickly as possible to pay for records and the fees some states charge for them. If you can’t donate funds: http://www.eservicescorp.com/form.aspx?fID=912 ,
please donate time.
E-mail to join the Cleanup Crew. (they need all types from doing grunt work, to lawyers and programers) crew@blackboxvoting.org
(Please also contribute tovotewatch http://www.votewatch.us .
They need $250,000 to do a professional statistical analysis of the election which can be used as hard evidence.
This is an excellent organization that has been conservative in its approach, using highly respected statisticians and developing trusted relationships with key media contacts. They are collecting and analyzing data to determine if there was fraud in the election as seems to be indicated by the 5% (or so) discrepancy between exit polls and reported results from the touch screen voting with no paper trail vs. the other types of voting where exit polls closely matched reported results.
If you decide to move forward with a tax-deductible contribution, please make your check payable to Votewatch (ID# 94-3255070) and send it to:
Votewatch
c/o: The San Francisco Foundation Community Initiative Foundation
(SFFCIF)
Attn: David Barlow
225 Bush Street
Suite 500
San Francisco, CA 94104
This is an excellent organization that has been conservative in its approach, using highly respected statisticians and developing trusted relationships with key media contacts. They are collecting and analyzing data to determine if there was fraud in the election as seems to be indicated by the 5% (or so) discrepancy between exit polls and reported results from the touch screen voting with no paper trail vs. the other types of voting where exit polls closely matched reported results.
If you decide to move forward with a tax-deductible contribution, please make your check payable to Votewatch (ID# 94-3255070) and send it to:
Votewatch
c/o: The San Francisco Foundation Community Initiative Foundation
(SFFCIF)
Attn: David Barlow
225 Bush Street
Some sites with voterfraud info:
http://www.stolenelection2004.com
http://pages.ivillage.com/americans4america/id17.html
[URL=http://radtimes.blogspot.com http://www.whatreallyhappened.com/2004votefraud.html%5Dhttp://radtimes.blogspot.com http://www.whatreallyhappened.com/2004votefraud.html%5B/URL%5D
http://legitgov.org
http://democrats.com
250% of vote margin came from Karl Rove’s Bat Cave