Jodi Kantor and Adam Liptak of the New York Times have published a remarkable story about Dobbs that reports on private correspondences, votes at conference, and more. This post will highlight sixteen of the largest disclosures, and close with some broader thoughts. And I've presented this narrative in (roughly) chronological order.
Disclosure #1: Chief Justice Roberts's internal memo after Justice Scalia's death
The first disclosure long predates Dobbs. The Times reports on a previously-undisclosed memo that Chief Justice Roberts circulated after Justice Scalia's death. Roberts, ever attuned to public perception, worried how the public would perceive actions by a short-handed Court:
The previous death on the bench had produced unprecedented political maneuvering. Immediately after Justice Antonin Scalia passed away in 2016, the Senate majority leader, Mitch McConnell, refused to hold confirmation hearings for any successor chosen by Mr. Obama. Days later, Chief Justice Roberts wrote a previously undisclosed memo to his colleagues. His concern was how an evenly divided court could resolve cases given that the vacancy seemed a long way from being filled — "unfortunately," he said.
"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 often speculate that the Justices make decisions with an eye towards elections, and how the public perceives the Court. Roberts's memo states the point clearly. Rather than setting cases for re-argument, the Court 4-4'd cases including Friedrichs v. California Teacher's Association (mandatory union dues) and U.S. v. Texas (DAPA). In July 2016, Justice Ginsburg told Liptak that with Friedrichs, "This court couldn't have done better than it did." The Court also punted on Zubik v. Burwell (contraception mandate). I wrote about both of these issues in the Harvard Law Review that fall.
Disclosure #2: Justice Ginsburg's home was turned into a "makeshift office"
The Times also provides some insights into Justice Ginsburg's final days. Her home was turned in a "makeshift office," and her staff quarantined before entering.
Her assistants devoted themselves to protecting the justice, transforming her home into a makeshift office, taking turns there and quarantining beforehand, according to several people at the court then.
Justice Ginsburg, 87, mustered the strength to perform a wedding on Aug. 30. Three days later, Mississippi's appeal appeared on the agenda for the justices' first conference of the term, in late September. With Election Day approaching, she was willing herself to survive as long as possible, according to people close to her.
I remember reading about the wedding at the time. Thought it was performed outdoors, I thought it was risky for RBG to go anywhere in public, given her health. On Constitution Day, Ginsburg was slated to speak at the National Constitution Center. When Justice Gorsuch showed up, I wondered if something was amiss. The next day, Rosh Hashanah, Justice Ginsburg would pass away.
Disclosure #3: Justice Alito rescheduled Dobbs while waiting for Justice Ginsburg's vacancy to be filled
In March 2021, I observed that there was some unusual docket activity with regard to the Dobbs petition:
On June 15, 2020, a petition for certiorari was filed in Dobbs v. Jackson Women's Health Organization. Two weeks later, the Court decided June Medical. Over the past 9 months (three trimesters if you will), the circuits have split about whether June Medical overruled portions of Whole Woman's Health. The Court first distributed Dobbs for the 9/29/20 conference. It was then rescheduled for 10/9/20. And rescheduled again for 10/16/20. And rescheduled again for 10/30/20–three days after Justice Barrett was confirmed. Finally the petition was distributed for the 1/8/21 conference. In total, the petition was considered at eight conferences.
It's possible the Court will ultimately grant certiorari at the end of the term. Or maybe there is another vehicle in the waiting that can be granted; Dobbs can be held. At this juncture, there do not appear to be four votes to grant. One or more justices may be writing a dissent from denial of cert. What is going on here?
The Times provides some background information on that process. By the time that Dobbs was scheduled for distribution on 9/29/20, President Trump had already announced that Justice Barrett would be the nominee. It seems that Justice Alito was able to reschedule the case several times to allow Barrett to join the Court.
Days after Justice Ginsburg's death, Mr. Trump nominated Justice Barrett, who had once signed a statement against "abortion on demand." Shortly after the burial, grieving staff members were instructed to empty Justice Ginsburg's chambers. Justice Barrett was confirmed on Oct. 26, when early voting was already underway in the election that would end Mr. Trump's presidency. Suddenly the Mississippi law had fresh prospects. But instead of discussing whether to take the case, the court rescheduled the matter again and again, for an unusual nine times, through the end of the year. For at least some of that period, Justice Alito was doing the rescheduling, according to two people who observed the process. To some at the court, he appeared to be waiting for his new colleague to get settled. Justice Alito did not respond to a request for an interview about his role in the case.
On January 4, 2021, the case was finally scheduled for the January 8, 2021 conference.
Disclosure #4: There were five votes to grant at the January 8 conference, but that vote was not released right away
The January 8 conference was held less than two days after January 6. No doubt there was much on the minds of the Justices. The Times reports that at conference, the Chief Justices and the three progressives were opposed to granting the case. NO surprise there. But Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett votes to grant cert.
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.
Yet, the Court did not announce the grant right away.
Disclosure #5: Justice Kavanaugh relisted Dobbs to kick it till the next term
Had the Court granted Dobbs at the first conference in January 2021, the case would have likely been hard at the end of April 2021, with a decision by June 2021. Already on the docket for that term was Fulton, California v. Texas, Collens v. Yellen, Arthrex, Brnovich, Cedar Point, NCAA v. Alston, AFP v. Bonta, Mahanoy, and others. I can understand the impulse to not add Dobbs on top of that mountain, with only a few months to resolve the matter. Instead, the Times reports, Court would engage in something of a stalling technique:
Dobbs had more than cleared the bar to proceed. But at a subsequent meeting, [Justice Kavanaugh] 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.
Justices Alito, Gorsuch and Thomas disagreed, wanting to move sooner and hear the case that term. Some justices questioned whether Justice Kavanaugh's proposal was appropriate: The case had been on the docket since September.
In my March 2021 post, I speculated that the large number of relists was due to the fact that there were not yet four votes for cert. I tend to agree that Kavanaugh's dilatory tactic is not appropriate. I've written elsewhere that the Court's CVSG in Students for Fair Admissions, followed by unnecessary relists performed a similar punt. I like to think that the Court's procedure rules can be applied neutrally, but alas, no.
Yet, Kavanaugh's approach was adopted.
The Kavanaugh plan prevailed, and as the winter of 2021 turned to spring, the docket showed the case being re-listed week after week.
I can't imagine the liberals objected. Any delay could inure to their benefit. During this delay, the conservatives worried that Justice Kavanaugh would waver on cert.
Anxiety mounted among conservatives outside the court. Seizing the moment was vital, they were saying. Justices Alito and Thomas were in their 70s, and the new conservative supermajority would not last forever.
The Times reports that Justice Breyer urged Justices Kavanaugh and Barrett to take their time.
To maintain Americans' trust in the court, he urged, the newcomers should take the long view.
"What's the rush?" he would ask, according to several people at the court then. "Why would you do it first thing after you get on the court?"
But Justice Breyer was not successful.
His entreaties failed. On May 17, 2021, the court publicly said yes to hearing Mississippi's petition. With their waiting game, the justices had nearly broken a record: Dobbs was the second most re-listed case ever granted review.
Ultimately, Dobbs was granted in May 2021, limited to the first question presented–should Roe be overruled.
Disclosure #6: Justice Barrett initially voted to grant cert, but switched her vote to no
Justice Barrett also seemed to favor kicking the case till the next term.
But Justice Barrett, the newest member of the court, made a strong stand. She was the lone woman in the conservative bloc, with seven children and personal views on abortion that were no secret. Of the nine people in black robes, she was the sole mother.
This was not the time, she told Justice Alito, according to two people aware of the comment. She had arrived not even three months before. If the others intended to hear the case that term, she said, she would change her vote to oppose taking it.
If Thomas, Alito, Gorsuch, and Kavanaugh voted to hear the case during the October 2020 term, she would vote to oppose taking it. But then again, only four votes are needed for cert, so this opposition would have only been symbolic.
The chief also expressed concern, saying the court could look as if it had been waiting for a new justice to take on a challenge to Roe. Justice Alito, seemingly worried that a delay could affect the outcome, asked Justice Kavanaugh if his vote was solid, to which the younger man said yes.
Kavanaugh was solid, but he still favored the dilatory tactic described above.
And at some point before the May 17, 2021 cert grant, Justice Barrett switched to vote to no–and she did so even though the case was set to be argued the following term:
But sometime before the announcement, Justice Barrett had switched her vote. Just four members of the court, the bare minimum, chose to grant, with Justice Kavanaugh taking the side of Justices Alito, Gorsuch and Thomas. They overrode five colleagues — including all the female justices — who had an array of concerns. The men appeared to be betting that Justice Barrett would ultimately side with them, pushing her into a case she had not wanted to take.
Her reasons for the reversal are unclear.
In my end-of-term post, I described the defining feature of Justice Barrett's jurisprudence as caution. I've long suspected that she is responsible for many of the Court's cert denials–especially where Justices Thomas or Alito signal a dissent. Of the three Trump appointees, she is the one least wiling to take cases. Indeed, Justice Kavanaugh has set himself aside from signaling that he wants to take more cases, often in somewhat obscure matters. This reporting provides some support for my supposition. (For those interested, I've adapted my posts on Barrett, as well as on Gorsuch and Kavanaugh, for an essay in the inaugural issue of the Texas A&M Journal of Law and Civil Governance.)
Disclosure #7: The Texas Fetal Heartbeat Law and Dobbs
The Times also provides some background on how S.B. 8 (the Texas fetal heartbeat law) affected the Dobbs deliberations. I maintain that the work of Jonathan Mitchell, A/K/A "The Genius," greased the skids for Dobbs. S.B. 8 showed the Court how a post-Roe world would look.
S.B. was slated to go into effect on September 1. The Times reports that Justice Alito emailed his colleagues the day before, on August 31, and urged them not to intervene. There were four solid votes to deny the application: Thomas, Alito, Kavanaugh, and Barrett.
On the afternoon of Aug. 31, during the court's summerlong break, Justice Alito emailed his colleagues a memo arguing against intervening, according to notes on the discussion. The justices' hands were tied, the lawsuit was flawed and their decision was not a judgment on the constitutionality of the law, he wrote. Justices Thomas, Kavanaugh and Barrett agreed, with the new justice honing the language of what the court's response might say.
And we learn that Justice Barrett wrote what would become the Court's one-paragraph per curiam opinion. The discussion of California v. Texas should have been a tell. It reads very much like something a FedCourts professor would write.
The Times also reveals what Chief Justice Roberts wrote to his colleagues about S.B. 8:
But the chief put up a fight. "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, according to the notes, and it could have far-reaching implications. He wanted to pause the ban and figure out how to proceed. Justices Breyer, Kagan and Sotomayor took his side, resulting in four votes to intervene.
Ultimately, Roberts's two-page dissent did not discuss the chilling of a constitutional right. Justice Sotomayor's dissent made this point overtly:
The Court's order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand
But we learn from the Times that Justice Gorsuch was on the fence:
With just a few hours until midnight, the court was split 4-4. One justice had not voted: Neil Gorsuch.
There would be no word from him that evening, Justice Alito reported to his colleagues. Later, Justice Gorsuch declined to comment to The Times.
Nothing that happened afterward affected the outcome. The next afternoon, Justice Gorsuch voted against intervening. The chief justice made one last argument to block the law but failed, according to the notes. The court announced its decision; the litigation continued to play out for months, reaching the justices again for a fuller hearing, but the statute stayed intact.
In December 2021, the Court decided Whole Woman's Health v. Jackson. The majority opinion was assigned to Justice Gorsuch. At the time I speculated why Gorsuch had the case–maybe it was to shore up his vote. I wonder what his hesitancy was? Justice Gorsuch, unlike Justice Barrett, is not generally known for his cautious approach.
We also learn that Justice Sotomayor sent a note to the conference shortly before midnight:
Minutes before the deadline, Justice Sotomayor had protested that the court was not weighing in publicly before the law went into effect. She sent a plaintive, one-line memo to the conference, addressed to Justice Alito.
Disclosure #8: Mississippi Solicitor General Scott Stewart rejected a 15-week ban middle-ground:
The Times offers some background on Mississippi's litigation strategy. This reporting is consistent with my understanding. Specifically, some conservatives urged Stewart to give the Court a middle-ground: a 15-week ban would pass muster, but Roe could survive.
That fall, the lawyers in the Dobbs case were rehearsing for their appearance before the justices, each side doing an extraordinary eight rounds of moot court exercises. As Mr. Stewart, the Mississippi solicitor general, prepared for his turn at the lectern during oral arguments, he was urged by conservatives among the elite Supreme Court bar to mention a middle ground that might appeal to the chief justice and help ensure at least a partial victory.
The logic went like this: The state's 15-week limit on abortions could be upheld without overturning Roe. That cutoff, broadly consistent with U.S. public opinion and practices in many other democracies, would still allow the majority of abortions. The state's brief did devote a few pages to the possibility.
Many members of the conservative legal movement, especially those who were scarred by the 1980s and 1990s (Bork, Thomas, Casey), were apprehensive of urging the Court to overrule Roe. They worried what might happen in the aftermath of a decision. But younger members, who came of age with an entrenched movement, were more gung ho. This was the moment they had been fighting for, and they could not fumble at the one-yard line. I wrote about this divide after the 2021 Federalist Society National Lawyers convention. You should re-read that post, and see how much of it has come to fruition.
Stewart wisely rejected the advice of the old gaurd, and pushed forward.
That December, in a sparsely filled courtroom under Covid-19 restrictions, Mr. Stewart brushed off the advice he had gotten and went big. The justices should "go all the way and overrule Roe and Casey," he said.
Yet Roberts, the very embodiment of the old guard, tried to push the 15 week limit as a middle position
Soon after, still probing for a narrower result, the chief justice asked the clinic's counsel, "If it really is an issue about choice, why is 15 weeks not enough time?"
The clinic also took an all-or-nothing position. "States will rush to ban abortion at virtually any point in pregnancy," responded Julie Rikelman, a lawyer for the clinic.
The strategy 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," said Nancy Northup, president of the Center for Reproductive Rights, which represented the clinic, in an interview. Any erosion of the viability line, the clinic's lawyers felt, would only lead to the eventual undoing of Roe.
I anticipated the Chief"s "lonely, failed saving construction 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 court fails to overrule Roe, the ruling will likely shatter the movement," 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's like your favorite law professor."
Justice Breyer was so committed to the institution of the Court that he was willing to uphold the Mississippi law to save Roe. And that effort, with the Chief Justice, was targeted at Justice Kavanaugh.
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 about how 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 sacrificial lamb. And there is no indication that there were efforts to flip Justice Barrett, only Kavanaugh.
Justices O'Connor, Kennedy, and Souter were praised as "judges of wisdom" for their Casey plurality. Had Justice Kavanaugh gone 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 "may be trying to turn another 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 or 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 Personal Devices 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 Personal Devices 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 kind with or concerning reporters or media organizations." It is not clear whether clerks signed the form: At least some sought legal advice and negotiated limits.
This is a very broad search, and could sweep in personal information that has nothing to do with Dobbs–for example, if a friend or family member had an abortion. The Supreme Court police also sought GPS data over the prior year! And that information could be distributed to the Chief Justice and the Associate Justices.
Disclosure 16: The Conservative Justices opposed oral announcements from bench
In June 2022, the Supreme Court was still under COVID protocols, and did not announce opinions from the bench. Justice Breyer asked the Chief Justice if he could 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 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.
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 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.
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 "multiple" 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 said/she said."
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. After 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.
The post 16 Disclosures from the <I>New York Times</i> Leak Report About <i>Dobbs</i> appeared first on Reason.com.
