New details obtained by CNN provide insight into the high-stakes internal abortion-rights drama that intensified in late April when justices first learned the draft opinion would soon be published. Serious conflicts over the fate of the 1973 Roe were then accompanied by tensions over an investigation into the source of the leak that included obtaining cell phone data from law clerks and some permanent court employees.
Multiple sources told CNN that Roberts’ overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the chief could change the outcome in the most closely watched case in decades. Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decision, lest anything suddenly threaten their majority.
Roberts’ persuasive efforts, difficult even from the start, were thwarted by the sudden public nature of the state of play. He can usually work in private, seeking and offering concessions, without anyone beyond the court knowing how he or other individual justices have voted or what they may be writing.
The two men have known each other since the early 1990s when they both worked in the George H.W. Bush administration. Roberts, who is 67 and 10 years older than Kavanaugh, was a deputy US solicitor general at the time, and Kavanaugh, a new attorney.
They share similar Roman Catholic roots, prep school backgrounds and Ivy League educations (Roberts, Harvard; Kavanaugh, Yale). They now live so close to each other in Maryland that abortion rights protesters sometimes go to both homes on the same evening.
Conservatives anticipated Roberts’ actions
It has unsettled the court in its own way, as the 5-4 ruling represented a startling departure from a half century of precedent.
The final decision flouted the court’s traditional adherence to judicial restraint and precedent. Polls show public approval of the court falling significantly, as the decision has been regarded as a product of politics rather than neutral decision-making.
Roberts indeed was trying, according to CNN’s sources who also revealed that by the end of that April week the justices discovered that the news organization Politico had obtained Alito’s first draft of the Dobbs ruling from February.
Roberts launched an investigation into who might be behind “this betrayal of the confidences of the Court.” He vowed that court’s work “will not be affected in any way.”
But, of course, it was, most notably in diminishing whatever chance he had to dislodge the five-justice bloc set to overturn Roe. The aggressive leak investigation worsened the existing strains among the justices, their law clerks and other employees in the nine chambers.
Friction among all intensified as protests began, fencing and barricades were erected around the court, and some usual end-of-session lunches and parties were dropped.
Aggravating everything and presenting the greatest consequence for all Americans was the emerging force of the court’s right-wing supermajority, which, aside from abortion rights, included Roberts.
Roberts helped steer several of those rulings. For the court’s remaining three liberals, who held out some hope that the chief justice could moderate fellow conservatives on abortion rights, it was defeat all around.
Ginsburg’s death opened the door to justices reconsidering Roe
Mississippi had lost in lower courts because its prohibition conflicted with Supreme Court precedent dating to Roe, reaffirmed in 1992, prohibiting states from interfering with a woman’s abortion decision before a fetus can live outside the womb, at about 23 weeks.
The Mississippi case reached the high court in summer 2020 and just as it was scheduled for a late September justices’ conference, Ginsburg died on September 18. Then-President Donald Trump immediately nominated Barrett, an abortion rights critic, and the Senate confirmed her on October 26.
Without Barrett, the Mississippi petition might have been denied, as had happened in the past with abortion ban cases. There could have been the requisite four votes to accept the case, to be sure, but there would not have been a definite fifth for a majority vote against Roe.
Roberts, as became evident, could not be counted on to reverse Roe.
Trump had promised during his 2016 presidential campaign to appoint justices who would reverse Roe. His third appointee, Barrett, however, wanted to hold off on an immediate vote on the pending Mississippi appeal, and the petition was repeatedly rescheduled for consideration through late 2020 and early 2021.
Texas law S.B. 8 revealed conservatives’ mindset
Just two days later, Texas Gov. Greg Abbott signed a law — S.B. 8 — banning abortions at roughly six weeks of pregnancy. A challenge to that blatantly unconstitutional prohibition unexpectedly became a prelude to the Mississippi case and revealed the majority’s mindset.
The same five-justice majority that would eventually strike down Roe let the Texas ban take effect at the beginning of September, dissolving abortion rights for the country’s second most populous state.
The chief justice’s persuasive power was also in the balance, and his failure to convince not one single colleague to break from the majority in the Texas controversy demonstrated a loss of authority in this area of the law.
While no other justice revealed interest in that Roberts’ option at oral arguments or in the weeks that followed, sources told CNN that there was still an air of possibility behind the scenes, based on Roberts’ past pattern and the knowledge that justices have previously switched votes at the 11th hour.
Roberts, sources told CNN, might have some opening, even if slim.
In 2012, as the justices considered the first major challenge to the Affordable Care Act, Roberts himself changed his vote on two key parts of the case and engineered a compromise opinion that upheld the law known as Obamacare. Since then, Roberts has negotiated cross-ideological compromises, including in 2020 cases involving Trump’s efforts to keep his tax records and other business documents from investigators.
Alito draft leak seals the vote count
To the extent that liberals had hoped that the original vote by conservatives would change, that hope faded. Meanwhile, CNN has learned, Politico’s disclosure accelerated the urgency of the conservative side to try to issue the opinion before any other possible disruptions.
As Roberts kept trying to prevent total reversal of Roe, the three liberals worked on a joint dissent that recalled the three-justice plurality opinion in Planned Parenthood v. Casey.
They referred to the three justices who had 30 years earlier preserved Roe — Sandra Day O’Connor, Anthony Kennedy and David Souter, all appointees of Republican presidents — as “judges of wisdom.”
In the end, Roberts wrote alone. He concurred in the majority’s decision to uphold Mississippi’s 15-week ban but called its repudiation of Roe “a serious jolt to the legal system.”
With a rare note of personal uncertainty, Roberts added, “Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share.”