Like everyone else, I anxiously await the DC Circuit decision on Trump’s immunity bid.

Unlike most people, I’m not yet convinced that the delay so far stems from Judge Karen Henderson deliberately stalling the decision.
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That’s because the decision is more complicated than most commentators appreciate.

There are three decisions in front of these judges. First, whether or not the court has jurisdiction to rule at all. Then, whether they should just rule for unofficial acts, like launching a coup to get reelected, or whether they should rule, generally, that Presidents can even be prosecuted for their official acts, like pardoning Roger Stone to buy his silence. Finally, they need to decide how to release the opinion, possibly in a way to give Trump fewer options to stall further.

Because the American Oversight amicus — a pretty convincing one! — raised a question about whether the DC Circuit had jurisdiction, it caused a potential split between Florence Pan and Michelle Childs, both Biden appointees, who otherwise seemed to agree on the scope of their ruling. Childs seemed very persuaded by the AO brief, and so very cautious about their basis to rule at all.

As a result, there’s no natural majority, meaning whatever opinion(s) get written will be far harder to map out. It is simply a far harder opinion than most people think, and if they get this wrong, it’s going to lead to far longer delays at both the en banc and SCOTUS level.

Talk to me in two weeks. If we’ve got no ruling then, I’m happy to start entertaining theories about deliberate delay.

And yet recent 2024 polls, which serve, at best, as snapshots of the electorate a year out, become news events unto themselves, generating reams of coverage and endless commentary. They’re not actually breaking news events, like, say, a train derailment, even if treated as such. They’re more creations of a media industrial complex that longs for easy data points, for things that feel like facts but are actually imprecise measuring mechanisms. 

For every piece that is directly about polling, like one from Politico proclaiming “the polls keep getting worse for Biden,” there are others based on the suppositions gleaned from poll results, such The Washington Post examining “Trump’s improved image.” Even pieces downplaying some headline-grabbing polls as the “wrong” ones, may seize on others to make a point.
“The odd thing about media polls is that they are reported as a newsworthy event, but this kind of event ‘happens’ only when a newsroom decides it’s time for one—and when it has the money,” NYU journalism professor Jay Rosen wrote in an email.
Polls may fall into the category of pseudo-events, a term coined in 1962 by Daniel J. Boorstin and defined as something that “planted primarily (not always exclusively) for the immediate purpose of being reported or reproduced.” Just like polls, a pseudo-event’s “relation to the underlying reality of the situation is ambiguous.” (This idea was recently discussed by on John Dickerson on Slate’s Political Gabfest episode on polling episode). In this way, a poll may be more like a press conference, something that is created to shape a narrative.

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Rosen has been out front this presidential election cycle with an “organizing principle” for journalists: “Not the odds, but the stakes.” The focus, he argues, should be “not who has what chances of winning, but the consequences for American democracy.” Placing too much emphasis on polls can shift the political conversation from critical reporting about what’s happening—such as the impact of Biden’s administration’s policies or Trump’s authoritarian plans for a second term—to predictions about what may happen a year later. 

So, what they apparently rely on now is “weighting”. Weighting is nothing new. It has been used in polling forever to cure some faults in sampling. If you find that your sample is under-or-over-supplied with people who fall into some known demographic category, you correct for that in the analysis phase. Up to a point, that can work.

Up to a point. But from what is leaking out of polling organizations now, that point has long been passed. According to an insider who made a comment here some months ago, now it’s basically ALL weighting. They try to line up the results according to a predetermined idea of what would likely be said by a truly random sample, by aligning as many demographic factors as they can with an abstract idea of how those measurements would line up in the real world.

Yet they can have less and less idea, as time goes by, of how the population actually falls according to any of these factors. There are no real base lines. They can say, “We don’t have enough Catholics”, or “We have too many people with college degrees”, and then try to align the results accordingly. Yet they are further and further from actually knowing how many Catholics there really are, or even how many people with college degrees live in given areas. On some factors they can try to align with the most recent Federal Census, but that’s extremely limited because the Census no longer collects any more than the most basic, meager information. On other possibly relevant factors there’s no data at all. In fact it’s reached the point where it’s not actually possible to know about many factors that might be relevant—new ones that have cropped up. It’s just too long now since there was any reliable base data.

So they may try to correct for a multitude of factors, without having any sort of base-line for those factors. Then on top of that, according to the person who wrote that comment, there’s a final “hand-waving” stage where they say in effect, “That just doesn’t look right”, and try to adjust the figures until it does.

This survey, which identifies key issues in the 2024 election and measures how much voters trust Biden vs. Trump on these issues and how Biden vs. Trump perform on a ballot in swing states, was conducted from Oct. 5-10, 2023, among a sample of 5,023 registered voters in Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin. The interviews were conducted online, and the data were weighted to approximate a target sample of swing state registered voters based on gender, age, race, marital status, home ownership, 2020 presidential vote and state. Results from the full survey have a margin of error of +/-1 percentage point.

Another change since 2020 is the broad public backlash, especially in Democratic-leaning and swing states, against the 2022 Supreme Court decision ending the constitutional right to abortion, which Trump has directly claimed credit for engineering through his nominations to the court. Finally, compared to 2020, the electorate in 2024 will likely include significantly more young people in Generation Z, a group that is preponderantly supporting Democrats, and fewer Whites without a college degree, now the GOP’s best group.

You’ve probably heard pundits tell you to ignore polls this far out from an election. This is not advice people are taking this week as surveys keep showing President Biden and Donald Trump tied after 91 felony charges and a string of positive headlines on jobs and inflation. Voters seem more judgmental than ever about Biden’s age, while polarized along familiar lines on the charges against Trump, and even a little nostalgic for his economic record.
But there are reasons campaign professionals tend to wave off early surveys, which have notoriously overstated threats to incumbents. Here’s why pollsters and strategists we spoke to say they’re not panicking yet.
There is no campaign. Every time you see a poll showing Biden’s approval in the 30s, mentally add an asterisk that says “before Democrats spend $1 billion.”
This isn’t so much about a prohibitive spending advantage (Republicans will have money too), but about what that money goes towards. In this case, it’s a message that so far has worked for Democrats in real-life conditions.
In the midterms, postmortems found that Democrats performed poorly in noncompetitive contests, but they won big in highly contested, swing state races where they could devote millions to ads on issues like abortion, drug prices, and entitlements while painting their opponents as “MAGA extremists.” The same formula has held up well in off-year elections since then, including a blowout judicial race in Wisconsin centered on abortion rights and gerrymandering.