Jodi Kantor and Adam Liptak of the New York Occasions have printed a outstanding story about Dobbs that stories on non-public correspondences, votes at convention, and extra. This put up will spotlight sixteen of the biggest disclosures, and shut with some broader ideas. And I’ve offered this narrative in (roughly) chronological order.
Disclosure #1: Chief Justice Roberts’s inside memo after Justice Scalia’s demise
The primary disclosure lengthy predates Dobbs. The Occasions stories on a previously-undisclosed memo that Chief Justice Roberts circulated after Justice Scalia’s demise. Roberts, ever attuned to public notion, apprehensive how the general public would understand actions by a short-handed Courtroom:
The earlier demise on the bench had produced unprecedented political maneuvering. Instantly after Justice Antonin Scalia handed away in 2016, the Senate majority chief, Mitch McConnell, refused to carry affirmation hearings for any successor chosen by Mr. Obama. Days later, Chief Justice Roberts wrote a beforehand undisclosed memo to his colleagues. His concern was how an evenly divided courtroom may resolve circumstances on condition that the emptiness appeared a great distance from being stuffed — “unfortunately,” he stated.
“Depending on the outcome of the election of both the president and the Senate, it may be some time after Inauguration Day before we even have a nominee, let alone a new colleague,” he wrote. “I think it quite possible that we will be operating as an eight-member court for over a year. In addition, the court will unfortunately be the focus of heated partisan debate over the summer and into the fall, which would be exacerbated if specific 4-4 cases were set to be reargued when a new justice joins the court.“
We frequently speculate that the Justices make choices with a watch in direction of elections, and the way the general public understand the Courtroom. Roberts’s memo states the purpose clearly. Moderately than setting circumstances for re-argument, the Courtroom 4-4’d circumstances together with Friedrichs v. California Trainer’s Affiliation (obligatory union dues) and U.S. v. Texas (DAPA). In July 2016, Justice Ginsburg instructed Liptak that with Friedrichs, “This court couldn’t have done better than it did.” The Courtroom additionally punted on Zubik v. Burwell (contraception mandate). I wrote about each of those points within the Harvard Regulation Evaluation that fall.
Disclosure #2: Justice Ginsburg’s house was became a “makeshift office”
The Occasions additionally offers some insights into Justice Ginsburg’s remaining days. Her house was turned in a “makeshift office,” and her workers quarantined earlier than getting into.
Her assistants devoted themselves to defending the justice, remodeling her house right into a makeshift workplace, taking turns there and quarantining beforehand, based on a number of folks on the courtroom then.
Justice Ginsburg, 87, mustered the power to carry out a marriage on Aug. 30. Three days later, Mississippi’s enchantment appeared on the agenda for the justices’ first convention of the time period, in late September. With Election Day approaching, she was prepared herself to outlive so long as potential, based on folks near her.
I keep in mind studying concerning the marriage ceremony on the time. Thought it was carried out outside, I believed it was dangerous for RBG to go anyplace in public, given her well being. On Structure Day, Ginsburg was slated to talk on the Nationwide Structure Middle. When Justice Gorsuch confirmed up, I puzzled if one thing was amiss. The subsequent day, Rosh Hashanah, Justice Ginsburg would move away.
Disclosure #3: Justice Alito rescheduled Dobbs whereas ready for Justice Ginsburg’s emptiness to be stuffed
In March 2021, I noticed that there was some uncommon docket exercise with regard to the Dobbs petition:
On June 15, 2020, a petition for certiorari was filed in Dobbs v. Jackson Girls’s Well being Group. Two weeks later, the Courtroom determined June Medical. Over the previous 9 months (three trimesters if you’ll), the circuits have break up about whether or not June Medical overruled parts of Entire Girl’s Well being. The Courtroom first distributed Dobbs for the 9/29/20 convention. It was then rescheduled for 10/9/20. And rescheduled once more for 10/16/20. And rescheduled once more for 10/30/20–three days after Justice Barrett was confirmed. Lastly the petition was distributed for the 1/8/21 convention. In whole, the petition was thought-about at eight conferences.
It is potential the Courtroom will finally grant certiorari on the finish of the time period. Or possibly there’s one other automobile within the ready that may be granted; Dobbs could be held. At this juncture, there don’t seem like 4 votes to grant. A number of justices could also be writing a dissent from denial of cert. What’s going on right here?
The Occasions offers some background data on that course of. By the point that Dobbs was scheduled for distribution on 9/29/20, President Trump had already introduced that Justice Barrett could be the nominee. Evidently Justice Alito was in a position to reschedule the case a number of occasions to permit Barrett to affix the Courtroom.
Days after Justice Ginsburg’s demise, Mr. Trump nominated Justice Barrett, who had as soon as signed an announcement towards “abortion on demand.” Shortly after the burial, grieving workers members had been instructed to empty Justice Ginsburg’s chambers. Justice Barrett was confirmed on Oct. 26, when early voting was already underway within the election that may finish Mr. Trump’s presidency. Immediately the Mississippi legislation had contemporary prospects. However as an alternative of discussing whether or not to take the case, the courtroom rescheduled the matter many times, for an uncommon 9 occasions, by means of the top of the yr. For at the very least a few of that interval, Justice Alito was doing the rescheduling, based on two individuals who noticed the method. To some on the courtroom, he gave the impression to be ready for his new colleague to get settled. Justice Alito didn’t reply to a request for an interview about his position within the case.
On January 4, 2021, the case was lastly scheduled for the January 8, 2021 convention.
Disclosure #4: There have been 5 votes to grant on the January 8 convention, however that vote was not launched instantly
The January 8 convention was held lower than two days after January 6. Little question there was a lot on the minds of the Justices. The Occasions stories that at convention, the Chief Justices and the three progressives had been against granting the case. NO shock there. However Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett votes to grant cert.
On the Jan. 8 convention, the three liberals — Justices Breyer, Elena Kagan and Sonia Sotomayor — and the chief justice opposed listening to the case. The 5 different conservatives voted in favor, based on a written tally and several other folks conversant in the discussions. They could not keep away from a case like this, Justice Kavanaugh instructed the group.
But, the Courtroom didn’t announce the grant instantly.
Disclosure #5: Justice Kavanaugh’s relisted Dobbs to kick it until the following time period
Had the Courtroom granted Dobbs on the first convention in January 2021, the case would have possible been arduous on the finish of April 2021, with a choice by June 2021. Already on the docket for that time period was Fulton, California v. Texas, Collens v. Yellen, Arthrex, Brnovich, Cedar Level, NCAA v. Alston, AFP v. Bonta, Mahanoy, and others. I can perceive the impulse to not add Dobbs on high of that mountain, with just a few months to resolve the matter. As a substitute, the Occasions stories, Courtroom would interact in one thing of a stalling method:
Dobbs had greater than cleared the bar to proceed. However at a subsequent assembly, [Justice Kavanaugh] made an unorthodox suggestion: The courtroom may withhold the general public announcement of its choice to take the case. The justices may re-list Dobbs many times on the general public docket, then announce the choice to maneuver ahead within the spring.
That might push it to the following time period, avoiding a rushed briefing and argument schedule, and permit them to observe different abortion circumstances winding by means of decrease courts, based on two folks conscious of the dialogue. His plan would additionally recommend the courtroom was nonetheless debating whether or not to go ahead, although a vote had been taken — and create the looks of distance from Justice Ginsburg’s demise.
Justices Alito, Gorsuch and Thomas disagreed, wanting to maneuver sooner and listen to the case that time period. Some justices questioned whether or not Justice Kavanaugh’s proposal was applicable: The case had been on the docket since September.
In my March 2021 put up, I speculated that the massive variety of relists was as a result of truth that there have been not but 4 votes for cert. I are likely to agree that Kavanaugh’s dilatory tactic shouldn’t be applicable. I’ve written elsewhere that the Courtroom’s CVSG in College students for Honest Admissions, adopted by pointless relists carried out an identical punt. I wish to assume that the Courtroom’s process guidelines could be utilized neutrally, however alas, no.
But, Kavanaugh’s method was adopted.
The Kavanaugh plan prevailed, and because the winter of 2021 turned to spring, the docket confirmed the case being re-listed week after week.
I am unable to think about the liberals objected. Any delay may inure to their profit. Throughout this delay, the conservatives apprehensive that Justice Kavanaugh would waver on cert.
Nervousness mounted amongst conservatives outdoors the courtroom. Seizing the second was important, they had been saying. Justices Alito and Thomas had been of their 70s, and the brand new conservative supermajority wouldn’t final ceaselessly.
The Occasions stories that Justice Breyer urged Justices Kavanaugh and Barrett to take their time.
To keep up People’ belief within the courtroom, he urged, the newcomers ought to take the lengthy view.
“What’s the rush?” he would ask, based on a number of folks on the courtroom then. “Why would you do it first thing after you get on the court?”
However Justice Breyer was not profitable.
His entreaties failed. On Could 17, 2021, the courtroom publicly stated sure to listening to Mississippi’s petition. With their ready recreation, the justices had almost damaged a report: Dobbs was the second most re-listed case ever granted overview.
In the end, Dobbs was granted in Could 2021, restricted to the primary query offered–ought to Roe be overruled.
Disclosure #6: Justice Barrett initially voted to grant cert, however switched her vote to no
Justice Barrett additionally appeared to favor kicking the case until the following time period.
However Justice Barrett, the latest member of the courtroom, made a robust stand. She was the lone girl within the conservative bloc, with seven youngsters and private views on abortion that had been no secret. Of the 9 folks in black robes, she was the only real mom.
This was not the time, she instructed Justice Alito, based on two folks conscious of the remark. She had arrived not even three months earlier than. If the others supposed to listen to the case that time period, she stated, she would change her vote to oppose taking it.
If Thomas, Alito, Gorsuch, and Kavanaugh voted to listen to the case in the course of the October 2020 time period, she would vote to oppose taking it. However then once more, solely 4 votes are wanted for cert, so this opposition would have solely been symbolic.
The chief additionally expressed concern, saying the courtroom may look as if it had been ready for a brand new justice to tackle a problem to Roe. Justice Alito, seemingly apprehensive {that a} delay may have an effect on the end result, requested Justice Kavanaugh if his vote was stable, to which the youthful man stated sure.
Kavanaugh was stable, however he nonetheless favored the dilatory tactic described above.
And sooner or later earlier than the Could 17, 2021 cert grant, Justice Barrett switched to vote to no–and he or she did so although the case was set to be argued the next time period:
However someday earlier than the announcement, Justice Barrett had switched her vote. Simply 4 members of the courtroom, the naked minimal, selected to grant, with Justice Kavanaugh taking the facet of Justices Alito, Gorsuch and Thomas. They overrode 5 colleagues — together with all the feminine justices — who had an array of issues. The lads gave the impression to be betting that Justice Barrett would finally facet with them, pushing herinto a case she had not wished to take.
Her causes for the reversal are unclear.
In my end-of-term put up, I described the defining characteristic of Justice Barrett’s jurisprudence as warning. I’ve lengthy suspected that she is accountable for most of the Courtroom’s cert denials–particularly the place Justices Thomas or Alito sign a dissent. Of the three Trump appointees, she is the one least wiling to take circumstances. Certainly, Justice Kavanaugh has set himself other than signaling that he desires to take extra circumstances, usually in considerably obscure issues. This reporting offers some assist for my supposition. (For these , I’ve tailored my posts on Barrett, in addition to on Gorsuch and Kavanaugh, for an essay within the inaugural problem of the Texas A&M Journal of Regulation and Civil Governance.)
Disclosure #7: The Texas Fetal Heartbeat Regulation and Dobbs
The Occasions additionally offers some background on how S.B. 8 (the Texas fetal heartbeat legislation) affected the Dobbs deliberations. I preserve that the work of Jonathan Mitchell, A/Ok/A “The Genius,” greased the skids for Dobbs. S.B. 8 confirmed the Courtroom how a post-Roe world would look.
S.B. was slated to enter impact on September 1. The Occasions stories that Justice Alito emailed his colleagues the day earlier than, on August 31, and urged them to not intervene. There have been 4 stable votes to disclaim the appliance: Thomas, Alito, Kavanaugh, and Barrett.
On the afternoon of Aug. 31, in the course of the courtroom’s summerlong break, Justice Alito emailed his colleagues a memo arguing towards intervening, based on notes on the dialogue. The justices’ fingers had been tied, the lawsuit was flawed and their choice was not a judgment on the constitutionality of the legislation, he wrote. Justices Thomas, Kavanaugh and Barrett agreed, with the brand new justice honing the language of what the courtroom’s response would possibly say.
And we be taught that Justice Barrett wrote what would change into the Courtroom’s one-paragraph per curiam opinion. The dialogue of California v. Texas ought to have bene a inform. It reads very very like one thing a FedCourts professor would write.
The Occasions additionally reveals what Chief Justice Roberts wrote to his colleagues about S.B. 8:
However the chief put up a combat. “It is certainly arguable (and argued here) that the existence of the law itself operates to chill the exercise of a recognized constitutional right,” he wrote, based on the notes, and it may have far-reaching implications. He wished to pause the ban and work out proceed. Justices Breyer, Kagan and Sotomayor took his facet, leading to 4 votes to intervene.
In the end, Roberts’s two-page dissent didn’t focus on the chilling of a constitutional proper. Justice Sotomayor’s dissent made this level overtly:
The Courtroom’s order is gorgeous. Offered with an software to enjoin a flagrantly unconstitutional legislation engineered to ban girls from exercising their constitutional rights and evade judicial scrutiny, a majority ofJustices have opted to bury their heads within the sand
However we be taught from the Occasions that Justice Gorsuch was on the fence:
With just some hours till midnight, the courtroom was break up 4-4. One justice had not voted: Neil Gorsuch.
There could be no phrase from him that night, Justice Alito reported to his colleagues. Later, Justice Gorsuch declined to remark to The Occasions.
Nothing that occurred afterward affected the end result. The subsequent afternoon, Justice Gorsuch voted towards intervening. The chief justice made one final argument to dam the legislation however failed, based on the notes. The courtroom introduced its choice; the litigation continued to play out for months, reaching the justices once more for a fuller listening to, however the statute stayed intact.
In December 2021, the Courtroom determined Entire Girl’s Well being v. Jackson. The bulk opinion was assigned to Justice Gorsuch. On the time I speculated why Gorsuch had the case–possibly it was to shore up his vote. I’m wondering what his hesitancy was? Justice Gorsuch, in contrast to Justice Barrett, shouldn’t be typically recognized for his cautious method.
We additionally be taught that Justice Sotomayor despatched a observe to the convention shortly earlier than midnight:
Minutes earlier than the deadline, Justice Sotomayor had protested that the courtroom was not weighing in publicly earlier than the legislation went into impact. She despatched a plaintive, one-line memo to the convention, addressed to Justice Alito.
Disclosure #8: Mississippi Solicitor Common Scott Stewart rejected a 15-week ban middle-ground:
The Occasions affords some background on Mississippi’s litigation technique. This reporting is in keeping with my understanding. Particularly, some conservatives urged Stewart to present the Courtroom a middle-ground: a 15-week ban would move muster, however Roe may survive.
That fall, the legal professionals within the Dobbs case had been rehearsing for his or her look earlier than the justices, all sides doing a rare eight rounds of moot courtroom workout routines. As Mr. Stewart, the Mississippi solicitor common, ready for his flip on the lectern throughout oral arguments, he was urged by conservatives among the many elite Supreme Courtroom bar to say a center floor which may enchantment to the chief justice and assist guarantee at the very least a partial victory.
The logic went like this: The state’s 15-week restrict on abortions could possibly be upheld with out overturning Roe. That cutoff, broadly in keeping with U.S. public opinion and practices in lots of different democracies, would nonetheless enable nearly all of abortions. The state’s temporary did dedicate a number of pages to the likelihood.
Many members of the conservative authorized motion, particularly those that had been scarred by the Nineteen Eighties and Nineteen Nineties (Bork, Thomas, Casey), had been apprehensive of urging the Courtroom to overrule Roe. They apprehensive what would possibly occur within the aftermath of a choice. However youthful members, who got here of age with an entrenched motion, had been extra gung ho. This was the second they’d been combating for, and so they couldn’t fumble on the one-yard line. I wrote about this divide after the 2021 Federalist Society Nationwide Attorneys conference. It’s best to re-read that put up, and see how a lot of it has come to fruition.
Stewart correctly rejected the recommendation of the previous gaurd, and pushed ahead.
That December, in a sparsely stuffed courtroom underneath Covid-19 restrictions, Mr. Stewart dismissed the recommendation he had gotten and went massive. The justices ought to “go all the way and overrule Roe and Casey,” he stated.
But Roberts, the very embodiment of the previous guard, tried to push the 15 week restrict as a center place
Quickly after, nonetheless probing for a narrower consequence, the chief justice requested the clinic’s counsel, “If it really is an issue about choice, why is 15 weeks not enough time?”
The clinic additionally took an all-or-nothing place. “States will rush to ban abortion at virtually any point in pregnancy,” responded Julie Rikelman, a lawyer for the clinic.
The technique was “to really put pressure on what this was going to mean, for the integrity of the court, to reverse such a longstanding, individual, personal liberty, and the chaos that it was going to create,” stated Nancy Northup, president of the Middle for Reproductive Rights, which represented the clinic, in an interview. Any erosion of the viability line, the clinic’s legal professionals felt, would solely result in the eventual undoing of Roe.
I anticipated the Chief”s “lonely, failed saving development of Roe.” It was not hard.
Disclosure #9: There were five votes at conference to overrule Roe
Dobbs was argued on December 1, 2021. The Court would consider the case at the December 3, 2021 conference. The Times reports there were five votes at conference to overrule Roe. The Chief had already coalesced around his fifteen-week middle ground.
Days later, the justices reassembled to take a preliminary vote. Five favored overturning Roe, meaning they seemed set to prevail. The chief would have allowed Mississippi’s 15-week ban — technically putting him in the majority — but would go no further. The three liberals would have upheld the lower courts’ invalidation of the law.
When the chief is on the prevailing side, he typically assigns opinions. But in this case, several people from the court said, the senior member of the majority — Justice Thomas — assigned the opinion to Justice Alito.
And, we learn that Justice Thomas assigned the case to Justice Alito.
Disclosure #10: Justice Gorsuch, Thomas, Kavanaugh, and Barrett promptly joined the Dobbs draft
We know that Justice Alito’s “first draft” was dated February 10, 2022. But the Times suggests that Alito had circulated earlier version of his draft to Justices Thomas, Gorsuch, Kavanaugh, and Barrett.
Those dynamics help explain why the responses stacked up so speedily to the draft opinion in February 2022: Justice Alito appeared to have pregamed it among some of the conservative justices, out of view from other colleagues, to safeguard a coalition more fragile than it looked.
The Times prefers to this pregaming as a “time-honored” step. And it is–especially where holding five votes may prove precarious.
And the earlier distributions allowed the quartet to promptly join Alito’s circulated opinion.
On Feb. 10 last year, Justice Samuel A. Alito Jr. showed his eight colleagues how he intended to uproot the constitutional right to abortion. At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women’s Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words. But this time, despite the document’s length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration. The responses looked like a display of conservative force and discipline.
But it wasn’t enough to garner five votes on the first draft. Justice Alito needed to hold five votes till June. Justice Alito’s efficiency and leadership in Dobbs is worth of a full book-length treatment. In another universe, President George W. Bush nominated Samuel Alito as Chief Justice, and John Roberts as Associate Justice. One can dream how the past two decades would have played out with Chief Justice Alito at the helm. Then again, in another universe, we could have had Chief Justice Mike Luttig and Associate Justice Harriet Miers. What a nightmare that would have been.
Speaking of nightmares, the Times returns us to Casey. You can see what Justice Alito wanted to decide the case the previous term–the more time that elapses, the more mischief can happen.
Now [Justice Alito’s] mission was to keep his five votes together. Members of the court sometimes change their votes, which are not final until a decision is announced. When the speedy replies arrived in February, others at the court concluded that he had precirculated the draft opinion among his four allies, getting buy-in before sharing it with the full group of justices.
And Justice Alito knows all too well what happened in Casey. After all, he was the circuit court judge who wrote Casey.
Justice Alito knew the story well, because he had heard Casey as an appeals court judge. Now, the loss of even one member of the Dobbs majority would mean defeat, for the case and the conservative legal movement.
“If the courtroom fails to overrule Roe, the ruling will possible shatter the motion,” J. Joel Alicea, a Catholic University law professor and former Alito clerk, wrote in an essay at the time.
I made a similar obsevation as Joel Alicea, shortly after the 2021 FedSoc convention:
The failure to overrule Roe could have cataclysmic effects on the conservative legal movement. . . . If six members of the Court, who arose in this movement, cannot overrule Roe, then the movement will be deemed a failure for Camp #1. And people will decrease their support for the Federalist Society. Students will not be so eager to attend meetings. Lawyers will be less willing to devote their time as volunteers. Non-lawyers will eschew such principles as textualism and originalism, in light of the failure to kill Roe. And future administrations may be less willing to seek FedSoc’s guidance for appointments. The insourced process will be outsourced. There are four votes to overrule Chevron, but only three votes to overrule Roe. Ultimately, members of our movement will seek other conduits for change. To paraphrase R.E.M., Dobbs could be the end of FedSoc as we know it. But they do not feel fine.
After Dobbs was decided, I observed that Joel, Sherif Girgis, and a few others, were leaders in the conservative legal movement who helped advance the debate in Dobbs.
Disclosure #11: Justice Breyer was willing to erode Roe to save it
Joan Biskupic reported that the Chief Justice Roberts played an important role in trying to broker a compromise. The Times adds that Justice Breyer also tried to broker a Casey-esque compromise.
The court’s delay tactic on Dobbs opened a door for possible persuasion. Chief Justice Roberts and Justice Breyer, who were both drawn to consensus, were hoping to persuade their two newest colleagues to reconsider their support for hearing the case.
Justice Breyer truly built a relationship of moderation with his conservative colleague–one that I am not sure Justice Jackson can forge.
Justice Breyer was sometimes dismissed by other liberals as an overly optimistic institutionalist who underestimated the ambitions of the conservative majority. But inside the building, he had formed strong ties with the justices on the right. (When Justice Alito arrived, Justice Breyer charmed him with a surprise visit from the Phillie Phanatic, mascot of his favorite baseball team.) “They like him,” said one conservative who worked at the court then. “He is like your favourite legislation professor.”
Justice Breyer was so committed to the institution of the Court that he was willing to uphold the Missisippi law to save Roe. And that effort, with the Chief Justice, was targeted at Justice Kavanuagh.
Around the same time, another risk emerged: The chief and Justice Breyer continued trying to crack the coalition, making a last-ditch effort to save Roe. For years, Justice Kavanaugh’s career had trailed the chief’s, the two becoming allies and friends, often voting together and even playing in the same poker game. Though some conservative critics cast the chief as a turncoat when he sided with liberals, Justice Kavanaugh publicly praised him as a role model.
The gambit was to push the Casey line from viability to fifteen weeks.
Justice Breyer sought out Justice Kavanaugh, growing passionate in his arguments. If they could win him over, Justice Breyer even contemplated joining him and the chief in a 15-week position, according to people familiar with his thinking. The move — restricting the right to abortion to help save it — might have outraged liberals. But for Justice Breyer, who had just announced his retirement, it would have been a parting statement abouthow the justices can address contentious questions.
Meanwhile, even as the conservatives were seeking the chief’s vote, he was laboring over a concurring opinion he hoped would be persuasive. It was difficult to tell how open Justice Kavanaugh was to changing his position, according to several people aware of the discussions. But he was listening to his colleagues.
There is no indication that Justice Kagan would have gone along with this plan. Three votes was enough. And the retiring-Breyer would be the sacrifical lamb. And there is no indication that there were efforts to flip Justice Barrett, only Kavanuagh.
Justices O’Connor, Kennedy, and Souter were praised as “judges of knowledge” for their Casey plurality. Had Justice Kavanaugh went along with this gambit, it may have absolved him of the Blasey Ford allegations–temporarily at least. But that move also would have destroyed the conservative legal movement.
Disclosure #12: The Wall Street Journal and the Leak
On April 27, I speculated that the Wall Street Journal had a leak in Dobbs. I had previously speculated about similar leaks during the pendence of Bostock and NFIB. The Times echoes this speculation:
On April 27, after hearing the last argument of the term, Chief Justice Roberts paused for a moment of recognition. This would be Justice Breyer’s final appearance after 28 years on the court. As the chief saluted “the privilege of sharing this bench” with his friend, he choked up with emotion.
That week, the first public hints about the chief’s efforts emerged, with the Wall Street Journal editorial board writing that he “could also be attempting to show one other justice now.” The targets were Justices Barrett and Kavanaugh, the article said.
In other relatively recent cases — the 2012 Obamacare case and a 2020 case about gay and transgender rights — similar warnings had appeared in conservative media outlets, apparently to try to prevent justices on the right from splitting off to join liberals. In the health care matter, some information appeared to have dribbled out of the court.
I was the only conservative willing to publicly speculate the WSJ had leaks. And you wonder why I am not popular in my own camp either?
Disclosure #13: The Chief Justice notifies his colleagues about the Politico leak
I’ve often wondered how the Justices reacted to the Politico story. The Times offers this insight:
But the leak of the Alito draft turned into a violation of a different order. On April 29, the justices gathered for their Friday conference meeting. Traditionally, they ate lunch together afterward in their dining room, and this time they had planned a birthday toast for Justice Kagan, who had turned 62 the day before.
Sometime during those hours, the chief justice informed his colleagues that the full draft had been shared with Politico, according to people at the court then. On the following Monday evening, May 2, the news site published its story.
The leak would seem to be the first order of business, but the Chief maybe covered some other ground first. Happy Birthday Elena! Oh, by the way, everyone will soon see our Dobbs decision. L’Chaim!
Disclosure #14: The leak halted Roberts and Breyer’s efforts to save Roe
In the wake of the Politico story, we all speculated whether the leak would lock the five conservative votes in place for force a conservative Justice to flip. The Times supports the former theory:
The most glaring irregularity was the leak to Politico of Justice Alito’s draft. The identity and motive of the person who disclosed it remains unknown, but the effect of the breach is clear: It helped lock in the result, The Times found, undercutting Chief Justice Roberts and Justice Breyer’s quest to find a middle ground.
The Times adds that Roberts was even worried about circulating by email his draft concurrence.
Behind the scenes, that did not turn out to be true. Whatever the intent, the breach became a strike on the chief, Justice Breyer and their quest for compromise, said several people from the court. The chief worried whether he could even share his concurring opinion on an email list that had become a roster of suspects, waiting until new, paper-only protocols were in place.
The fact that the entire draft had been leaked, not just the outcome, raised the possibility that someone had tried to either expose the language or seal it. Pending votes were secret in part to allow justices to change their minds, and making the draft public had effectively cemented the votes.
The Times story does not mention the assassination attempt on Justice Kavanugh. For those curious, Mr. Roske still has not yet pleaded guilty. Discussions are ongoing with the U.S. Attorney.
Disclosure 15: “Consent to Search Private Gadgets Dobbs Leak Investigation”
After the leak, the Court asked Court employees to consent to a search of their electronic devices. The Times obtained a copy of the form, titled “Consent to Search Private Gadgets Dobbs Leak Investigation.”
The marshal’s office presented a form to the clerks, later obtained by The Times, that spurred panic. The young lawyers, dependent on court relationships for future jobs, were asked for access to their personal phones; location data going back nearly a year; and emails, texts, voice messages and photos.
Investigators could search for any references to abortion, criticism of the Supreme Court, mentions of court procedures and “any contact of any sort with or regarding reporters or media organizations.” It’s not clear whether or not clerks signed the shape: Not less than some sought authorized recommendation and negotiated limits.
This can be a very broad search, and will sweep in private data that has nothing to do with Dobbs–for instance, if a buddy or member of the family had an abortion. The Supreme Courtroom police additionally sought GPS information over the prior yr! And that data could possibly be distributed to the Chief Justice and the Affiliate Justices.
Disclosure 16: The Conservative Justices opposed oral bulletins from bench
In June 2022, the Supreme Courtroom was nonetheless underneath COVID protocols, and didn’t announce opinions from the bench. Justice Breyer requested the Chief Justice if he may make an exception for Dobbs. The Chief declined.
The dissent was unusual, written by the three liberal justices in unison. Overturning Roe and Casey “undermines the courtroom’s legitimacy,” they wrote, a grave statement from Justice Breyer, who had spent years defending the institution to critics.
He had asked the chief if a summary of the three justices’ dissent could be read aloud, a practice reserved for when those in the minority felt most strongly. The request evoked the memory of Justice Ginsburg, who had deployed oral dissents as a form of protest, even wearing a special collar over her robe.
The chief had turned Justice Breyer down. Decisions at that time were still being released online, not in person.
The Times also explains how the Court returned to its tradition of reading opinions–including with opposition from the Court’s conservatives.
Months later, reading dissents aloud would be challenged, according to a record of the discussion. As the pandemic abated and Justice Ketanji Brown Jackson settled into the court, Justice Gorsuch pushed to maintain the Covid-era practice of dispensing only written decisions. He wanted to skip in-person decision announcements altogether, including oral dissents, which he argued were often misleading. The public would gain respect for the court by focusing on written opinions, he said. Justices Alito, Barrett and Thomas responded that they agreed.
The summaries read from the bench sometimes lack the nuance of a written opinion, and on occasion may include bits that didn’t make it into the published decision. Gorsuch is not wrong.
But the Court’s liberals benefited most from the oral statements.
The outnumbered liberals, now all female, stood to lose the most. “I believe this may be a very unlucky time to remove the observe of studying dissents,” Justice Kagan wrote to her colleagues. Justice Kavanaugh agreed with them, and after further discussion, the group decided that the tradition would survive.
I think there is a reason why the hand-downs are still not broadcasted. That audio is only released several months later.
Conclusion
This post is already too long–nearly 6,000 words long. I apologize in advance for the typos. My proof-reading will not be as careful as it should. I’ve spent about 4 hours on this post. If you made it to the end, congratulations!
A few quick observations.
First, this is the most detailed leak report I’ve ever seen. Here is the sourcing:
The New York Times drew on internal documents, contemporaneous notes and interviews with more than a dozen people from the court — both conservative and liberal — who had real-time knowledge of the proceedings.
A dozen is a large number. Some of Joan Biskupic’s reports in the past have cited one or two or “a number of” sources. But there are at least twelve here. And the story quotes from actual emails and references written records, which presumably the authors have seen. That is far more authoritative than “he stated/she stated.”
Second, we get a better portrait of Justices Kavanaugh and Barrett. Kavanaugh was solid on cert, but wanted to kick the case to the next term. Barrett was initially solid on cert, but flipped for reasons unknown. Afer the case was argued, Barrett and Kavanaugh were solid on the merits. Perhaps the most unexplained item is Justice Gorsuch’s uncertainty on Whole Woman’s Health. I would love to figure out his hesitancy.
Third, whatever efforts were put in place to lock down information have failed miserably. Do I still favor the Chief’s resignation? Sure. He has had his turn at the helm, and his Gallup-poll centric jurisprudence has failed time and again. When his vote counts, I see little difference between Chief Justice Roberts and Justice Breyer.
