Draft opinion leak led to renewed sense of urgency among conservatives to issue final opinion before it could face other obstacles
Chief Justice John Roberts worked in secret to try to convince his fellow conservatives on the Supreme Court not to overturn Roe v Wade but the leak of Justice Samuel Alito’s draft opinion in early May likely ruined his chances, a new report suggests.
Justice Roberts worked to the very end of this spring’s Supreme Court session, but CNN now reports that Brett Kavanaugh, the right-wing justice considered most likely to change his mind, was probably never close to doing so.
The conversations grew more passionate when Justices discovered in late April that the draft opinion was set to be released to the public.
Justice Roberts has changed his own vote several times in favour of the status quo, including voting to save Obamacare. This has led some on the right side of the aisle to doubt his conservative credentials.
The 67-year-old was appointed to the court in 2005 by Republican President George W Bush.
Justice Roberts’s outreach this spring, mostly targeted at Justice Kavanaugh, led to worries among conservatives that he may achieve his goal of thwarting one of the largest right-wing legal victories in decades, CNN reported.
Following the release of the draft opinion by Politico, the right-wing justices urged their fellows to push forward with the publishing of the final decision in the hopes of cutting off the progress of any changing minds.
Justice Roberts’s attempts to save the stability and public credibility of the court were made more or less impossible when it became public where the court was heading.
In December of last year, Justice Kavanaugh suggested that he wanted to end Roe and voted to show that in a conference with the other justices not long after, according to CNN.
But Justice Kavanaugh, appointed by Donald Trump in 2018 in a gruelling Senate confirmation process in which he faced sexual assault allegations that he forcefully rejected, has been open to having his mind changed previously.
Justice Roberts and Justice Kavanaugh both worked in the George HW Bush administration and have been acquainted since the 1990s. They have similar backgrounds and live near each other in Maryland outside Washington, DC.
Justice Roberts also made some lesser efforts to convince the court’s newest Justice at the time – Amy Coney Barret, a conservative who was appointed following the death of liberal icon Ruth Bader Ginsburg.
The investigation into the leak negatively impacted the relationships between the justices and their law clerks.
“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Justice Roberts said when introducing the investigation.
“When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity that you can explain it, but you can’t undo it,” Justice Clarence Thomas said about the leak at a conference in Dallas, Texas.
Apart from on abortion rights, Justice Roberts has been a part of the court’s 6-3 rightward lurch, which has included rulings on guns, religious rights in support of conservatives, as well as a ruling against the EPA’s ability to protect the environment from pollution.
While the four justices to the right of the Chief Justice appeared unwilling to vote for any “half-measures” in the words of Justice Alito, Justice Roberts still appeared to see a slight possibility to avoid the end of Roe in the weeks after the December oral arguments over the Mississippi 15-week abortion ban that would ultimately remove the constitutional right to an abortion.
The leak of Justice Alito’s draft opinion made Justice Roberts’s attempts to prevent the striking down of Roe essentially unattainable as it locked in place the votes as they stood at that time when the typical privacy of discussions was busted, according to CNN.
The leak also led to a renewed sense of urgency among the conservatives to issue the final opinion before it could face other obstacles, the outlet reported.
The three liberals on the court wrote a joint dissent together while Justice Roberts continued his attempts to stop the Roe reversal.
The liberals recalled how three justices appointed by Republicans had preserved Roe in the 1992 case Planned Parenthood v Casey.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan said in their dissent that Sandra Day O’Connor, Anthony Kennedy and David Souter, “would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver”.
“But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up”, they added.
Justice Roberts wrote in a lone concurrence with the conservative majority that he supported the upholding of Mississippi’s 15-week ban but that reversing Roe was “a serious jolt to the legal system”.
“Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share”, he wrote.