New details obtained by CNN shed light on the deep domestic drama over abortion rights that intensified in late April when the justices first learned the draft opinion would soon be released. Serious conflicts over the fate of Roe since 1973 have been accompanied by tensions over an investigation into the source of the leak, which involved obtaining cell phone data from law clerks and some permanent court officials.
Multiple sources told CNN that Roberts’ overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the boss could swing the outcome in the closest case in decades. After the draft was published by Politico, conservatives pressed their colleagues to try to speed up the publication of the final decision, lest something 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 outside the court knowing how he or other individual justices voted or what they wrote.
During oral arguments in December, Cavanaugh indicated he wanted to overturn Roe, and CNN learned he voted that way in a private conference of the justices soon after. But former President-elect Donald Trump, who was confirmed by the Senate in 2018 only after expressing respect for Roe, has been hesitant in the past and has been open to Roberts’ persuasion.
The two men have known each other since the early 1990s, when they both worked in the George HW Bush administration. Roberts, who is 67 and 10 years Cavanaugh’s senior, was a deputy U.S. attorney at the time and Cavanaugh was a new attorney.
They share similar Roman Catholic roots, prep school, and Ivy League educations (Roberts, Harvard; Cavanaugh, Yale). They now live so close together in Maryland that abortion rights protesters sometimes go to both homes on the same evening.
Conservatives awaited Roberts’ action
The Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization hit America like a thunderbolt despite the May 2nd leak. The ruling caused confusion among women and health care providers and spurred action in state legislatures — some trying to impose more restrictions on pregnant women, some trying to protect reproductive rights.
That upset the court in its own way, as the 5-4 decision represented a startling departure from half a century of precedent.
The final decision ignored the court’s traditional adherence to judicial restraint and precedent. Surveys show that public approval of the court declines significantly as the decision is viewed as a product of politics rather than neutral decision-making.
Roberts’ efforts, aimed at Cavanaugh and, to a lesser extent, the newest conservative Justice Amy Coney Barrett, were expected. Some abortion advocates and members of the conservative movement feared that Roberts would sway either Cavanaugh or Barrett from the draft opinion written by Justice Samuel Alito, which was a total rejection of Roe rights and women’s privacy. The Wall Street Journal’s editorial page, which had previously obtained insider information on conservative votes, published an editorial on April 26 warning that Roberts, who is supposed to be working to save part of Roe, “may now to try to convert another judge’.
Roberts was indeed trying, according to CNN’s sources, who also revealed that by the end of this April week, the justices had discovered that the news organization Politico had received Alito’s first draft of the Dobbs decision since February.
Roberts and his colleagues spent an anxious few days quietly awaiting the release of the document, leading up to the afternoon of May 2, when all nine were together for a live-streamed memorial in the courtroom of the late Justice John Paul Stevens. Politico first published its story about the recruitment tonight at 8:32 p.m
Roberts launched an investigation into who might be behind “this betrayal of the court’s trust”. He promised that the work of the court “will not be affected in any way”.
But of course it was, mostly in reducing any chance it had of displacing the five-justice bloc that should have overruled Roe. The aggressive leak investigation has exacerbated existing tensions among the judges, their court clerks and other staff in the nine chambers.
As CNN previously reported, the sheriff of the court, Gail Curley, has asked court officials who have served the justice for a year to sign affidavits related to the leaks and turn over cell phone data. She also obtained electronic devices, CNN recently learned, from some permanent employees who work closely with the justice system.
Friction between all increased as protests began, fences and barricades were erected around the court, and some customary end-of-session lunches and parties were scrapped.
Aggravating all, and of greatest consequence to all Americans, was the emerging power of the right-wing supermajority on the court, which, in addition to abortion rights, included Roberts.
The 6-3 court ruled boldly to expand gun rights, favor religious conservatives and reduce environmental regulatory powers.
Roberts helped manage several of these decisions. For the other three liberals on the court, who had held out some hope that the chief justice might moderate his conservative colleagues on abortion rights, it was a defeat all around.
Ginsburg’s death opened the door for the justices to reconsider Roe
Mississippi officials, who transformed their initial defense of the state’s 15-week abortion ban into a broad attack on Roe, took advantage of two timely events: the death of abortion-rights champion Justice Ruth Bader Ginsburg and a sudden abortion controversy in Texas , including a six-week pregnancy ban.
Mississippi had lost in lower courts because its ban conflicted with Supreme Court precedent dating back to Roe, affirmed in 1992, barring states from interfering with a woman’s abortion decision before the fetus can live outside the womb, at about 23 weeks.
The Mississippi case reached the Supreme Court in the summer of 2020, and just as it was scheduled for the justices’ conference in late September, Ginsburg died on September 18. Then-President Donald Trump immediately nominated Barrett, a critic of abortion rights, and the Senate confirmed her on October 26.
Without Barrett, Mississippi’s petition could have been thrown out, as abortion ban cases have been in the past. It certainly could have had the necessary four votes to carry the case, but there would not have been an outright fifth for a majority against Roe.
Based on their previous statements and records, Alito and Cavanaugh, along with Justices Clarence Thomas and Neil Gorsuch, disagreed with the Supreme Court’s past rulings on abortion rights. The fifth conservative (before Ginsburg was succeeded by Barrett) was Roberts, and in 2020 he broke away from the right wing to reject Louisiana’s strict regulations on doctors who perform abortions.
As it became clear, Roberts could not be counted on to reverse Roe.
The relevance of those calculations diminished with the addition of Barrett, of whom Republican Sen. Lindsey Graham said during her confirmation hearing: “This is the first time in American history that we have nominated a woman who is unashamedly pro-life and embraces it (Roman Catholic) faith without excuse.”
Trump had promised during his 2016 presidential campaign to appoint justices to overturn Roe. His third appointee, Barrett, however, wanted to delay the immediate vote on the pending appeal in Mississippi, and the petition was repeatedly rescheduled for consideration into late 2020 and early 2021.
The justices took up Mississippi’s appeal publicly on May 17, 2021, and said they would decide just one question — as Roberts keeps reminding his colleagues: “Whether all abortion-choice bans are unconstitutional.”
The Texas bill SB 8 reveals the thinking of conservatives
Just two days later, Texas Governor Greg Abbott signed into law – SB 8 – banning abortions at approximately the sixth week of pregnancy. The challenge to this patently unconstitutional ban unexpectedly became a prelude to the Mississippi case and revealed the majority’s thinking.
The same five-judge majority that would eventually overrule Roe let the Texas ban go into effect in early September, eliminating abortion rights for the nation’s second-most populous state.
Roberts, along with the three liberal justices, dissented then and in December after the court heard oral arguments in the Texas case Whole Woman’s Health v. Jackson and ruled. “The clear purpose and actual effect of SB 8 is to overturn the decisions of this court,” Roberts wrote, adding that “the Supreme Court’s role in our constitutional system” is at stake.
The chief justice’s persuasive power also hung in the balance, and his failure to persuade a single colleague to depart from the majority in the Texas case demonstrated a loss of authority in this area of the law.
During December’s oral arguments in the Mississippi case, there seemed to be an almost national evisceration of abortion rights. Alito’s questions foreshadowed what he would write in the opinion. He suggested that he would find Roe “extremely wrong” and would be averse to any “half-measures” that Roberts might suggest. Cavanaugh and Barrett similarly sounded willing to go beyond the issue presented in the case, which originally involved “pre-viability prohibitions” on abortion. Roberts, on the other hand, wanted to overturn the viability framework of Roe and Planned Parenthood v. Casey in 1992. He would have voted to uphold Mississippi’s ban on abortion at the 15th week of pregnancy. But the chief justice thinks the court should delay a full review of the constitutional…
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