A detailed New York Times report published Friday offered fresh insight into how a Supreme Court dominated by conservatives succeeded in overturning nationwide abortion rights nearly 50 years after Roe v. Wade — including how a coalition to preserve the landmark case broke down.
The Supreme Court’s decision in June 2022 came a month after a draft of the majority opinion, authored by Justice Samuel Alito, had been leaked to Politico.
Internally, the leak had huge implications at the high court, the Times said. Before the draft was made public, Chief Justice John Roberts and now-retired Justice Stephen Breyer had reportedly been trying to pull together a compromise solution in the case of Dobbs v. Jackson Women’s Health Organization.
Breyer had even reportedly considered siding with the court’s conservatives in order to save Roe by taking a hammer to its abortion protections.
The Roe decision, made in 1973, preserved a person’s right to an abortion before the fetus could survive on its own. The Dobbs compromise might have set the new line at 15 weeks’ gestation, following the Mississippi law that the case was brought to challenge.
Breyer and Roberts had also reportedly hoped to convince newer Justices Brett Kavanaugh and Amy Coney Barrett to join them on middle ground.
But the leak stopped all that, the Times reported.
The leaker’s identity is still unknown. The Times argued, however, that the effect was clearly favorable for the court’s ultraconservatives, Justices Alito, Clarence Thomas and Neil Gorsuch.
The Politico report indicated how most of the justices intended to vote, helping to lock them in — even though Barrett and Roberts had reportedly opposed taking up the case in the first place. (Barrett initially voted for taking up the case but changed her mind, the Times said.)
The outlet described a single-minded effort by Alito and Thomas to ram the Dobbs case through the court after the death of Justice Ruth Bader Ginsburg, in order to accomplish the conservative legal movement’s decadeslong goal of killing Roe. The Times even presented evidence that Alito had secretly circulated his draft opinion among his conservative allies to strengthen support: Gorsuch reportedly signed off on Alito’s 98-page draft in just 10 minutes once it was shared by a staffer on Feb. 10, 2022.
The picture that emerges in the Times piece is that of a fractured court with tenuous power dynamics that Roberts may be struggling to control.
An investigation by the marshal of the Supreme Court failed to uncover the leaker’s identity earlier this year — although Alito said he has a “pretty good idea” of who it was.