Inside the destruction of reproductive freedom in America

Jodi Kantor and Adam Liptak, in what I hope is part of a larger project, have the inside information behind Dobbs. The outline of what happened is broadly familiar, but it’s good to have confirmation:

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.

In the months since, that draft turned into a leak, then law, then the rare Supreme Court decision that affects the entire country, reshaping elections, the practice of medicine and a fundamental aspect of being female. The story of how this happened has seemed obvious: The constitutional right to abortion effectively died with Justice Ruth Bader Ginsburg, whom President Donald J. Trump replaced with a favorite of the anti-abortion movement, Justice Barrett.

Quick and clean! Almost eerily so, and indeed this involved complicated pre-gaming:

But that version is far from complete. Justice Barrett, selected to clinch the court’s conservative supermajority and deliver the nearly 50-year goal of the religious right, opposed even taking up the case. When the jurists were debating Mississippi’s request to hear it, she first voted in favor — but later switched to a no, according to several court insiders and a written tally. Four male justices, a minority of the court, chose to move ahead anyway, with Justice Kavanaugh providing the final vote.

Susan Collins, in other words, may be the reason Roe was overruled when it was.

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 Supreme Court deliberates in secret, and those who speak can be cast out of the fold. To piece together the hidden narrative of how the court, guided by Justice Alito, engineered a titanic shift in the law, 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. Because of the institution’s insistence on confidentiality, they spoke on the condition of anonymity.

At every stage of the Dobbs litigation, Justice Alito faced impediments: a case that initially looked inauspicious, reservations by two conservative justices and efforts by colleagues to pull off a compromise. Chief Justice John G. Roberts Jr., a conservative, along with the liberal Justice Stephen G. Breyer, worked to prevent or at least limit the outcome. Justice Breyer even considered trying to save Roe v. Wade — the 1973 ruling that established the right to abortion — by significantly eroding it.

To dismantle that decision, Justice Alito and others had to push hard, the records and interviews show. Some steps, like his apparent selective preview of the draft opinion, were time-honored ones. But in overturning Roe, the court set aside more than precedent: It tested the boundaries of how cases are decided.

Justice Ginsburg’s death hung over the process. For months, the court delayed announcing its decision to hear the case, creating the appearance of distance from her passing. The justices later allowed Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe — the kind of move that has prompted dismissals of other cases.

As Paul has already pointed out, Breyer appeared to submit his resignation in the same week Alito’s draft was first circulated, strongly suggesting that he stayed on the Court because he thought he could broker a compromise, and left when it became clear that he couldn’t. It does appear that this was a more rational belief than I would have thought.

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 effect of the leak was to lock in the anti-Roe majority, and we know that somebody in the chambers of one of the Republican justices was communicating directly with the Wall Street Journal editorial board trying to protect a maximalist opinion. Curious [scratches chin.] I suppose there remains some uncertainty about where the leak came from, in the sense that it could have been Alito, Thomas, Gorsuch, or one of their clerks.

Kavanaugh hatched a plan to avoid disclosing the Court’s decision to grant cert in the Mississippi case for months for political reasons, which Alito ultimately agreed to:

At the Jan. 8 conference, the three liberals — Justices Breyer, Elena Kagan and Sonia Sotomayor — and the chief justice opposed hearing the case. The five other conservatives voted in favor, according to a written tally and several people familiar with the discussions. They couldn’t avoid a case like this, Justice Kavanaugh told the group.

Dobbs had more than cleared the bar to proceed. But at a subsequent meeting, he made an unorthodox suggestion: The court could withhold the public announcement of its decision to take the case. The justices could re-list Dobbs again and again on the public docket, then announce the decision to move forward in the spring.

That would push it to the next term, avoiding a rushed briefing and argument schedule, and allow them to watch other abortion cases winding through lower courts, according to two people aware of the discussion. His plan would also suggest the court was still debating whether to go forward, even though a vote had been taken — and create the appearance of distance from Justice Ginsburg’s death.

One last thing worth noting is that the Court’s Republicans — Roberts included in this case — did not want the joint dissent read from the bench for posterity and forbid it:

The dissent was unusual, written by the three liberal justices in unison. Overturning Roe and Casey “undermines the court’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.

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 outnumbered liberals, now all female, stood to lose the most. “I think this would be a particularly unfortunate time to eliminate the practice of reading dissents,” Justice Kagan wrote to her colleagues. Justice Kavanaugh agreed with them, and after further discussion, the group decided that the tradition would survive.

But it did not apply to Dobbs. The chief had turned Justice Breyer down. Decisions at that time were still being released online, not in person.

And so it was done.

On July 6, the clinic performed its final abortion. The pink building was painted white and turned into a home décor store. But the phone lines stayed open. For months afterward, women who had not gotten the news about the justices’ decision in Washington were still calling.

I will never forget the young woman in my con law class, having read the leaked draft, reactimg with angry incredulity to Alito’s assertion that women had no material interest in affirming Roe. I will also never forget the Republican legal operative who was also teaching at CUNY — a Charles Fried type, not a true believer, and I would bet that he voted for Clinton and Biden — condescendingly telling me in fall 2005 how wrong I was to think that Alito was even more reactionary than Scalia, and that he would surprise liberals with his moderation. I guess that’s why pencils have erasers!