The inside story of how John Roberts failed to save abortion rights

CNN

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Chief Justice John Roberts privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end, but May’s unprecedented leak of a draft opinion reversing Roe v. Wade made the effort all but impossible, multiple sources familiar with negotiations told CNN.

It appears unlikely that Roberts’ best prospect — Justice Brett Kavanaugh — was ever close to switching his earlier vote, despite Roberts’ attempts that continued through the final weeks of the session.

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.

In the past, Roberts himself has switched his vote, or persuaded others to do so, toward middle-ground, institutionalist outcomes, such as saving the Affordable Care Act. It’s a pattern that has generated suspicion among some right-wing justices and conservatives outside the court.

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.

Kavanaugh had indicated during December oral arguments that he wanted to overturn Roe and CNN learned that he voted that way in a private justices’ conference session soon afterward. But the 2018 appointee of former President Donald Trump who had been confirmed by the Senate only after expressing respect for Roe has wavered in the past and been open to Roberts’ persuasion.

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

The high court’s June 24 ruling in Dobbs v. Jackson Women’s Health Organization struck America like a thunderbolt, despite the leaked preview on May 2. The decision has 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 safeguard reproductive rights.

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’ efforts directed toward Kavanaugh and to a lesser extent newest conservative Justice Amy Coney Barrett were anticipated. Some anti-abortion advocates and conservative movement figures had feared that Roberts would sway either Kavanaugh or Barrett from the draft opinion written by Justice Samuel Alito that was an all-out rejection of Roe and women’s privacy rights.

The Wall Street Journal editorial page, which has previously obtained inside information about conservative votes, had published an editorial on April 26 warning that Roberts, presumed to be working to save part of Roe, “may be trying to turn another Justice now.”

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 and his colleagues spent a few anxious days quietly awaiting publication of the document, stretching through the afternoon of May 2, when all nine were together for a live-streamed memorial at the court for the late Justice John Paul Stevens. Politico first published its story about the draft that night at 8:32 p.m.

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.

As CNN earlier reported, the court’s marshal, Gail Curley, asked law clerks who serve the justices for one-year terms to sign affidavits related to the leak and to turn over cell phone data. She also obtained electronic devices, CNN recently learned, from some permanent employees who work closely with the justices.

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.

The 6-3 court ruled boldly to enhance gun rights, favor religious conservatives, and diminish regulatory authority over the environment.

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

The Mississippi officials who transformed their initial defense of the state’s 15-week abortion ban into a broad assault on Roe benefited from two timely developments: the death of abortion rights supporter Justice Ruth Bader Ginsburg and a sudden Texas abortion controversy involving a ban at six-weeks of pregnancy.

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.

Based on their previous statements and records, Alito and Kavanaugh, along with Justices Clarence Thomas and Neil Gorsuch, disagreed with the high court’s past abortion-rights rulings. The fifth conservative (before Barrett’s succession of Ginsburg) was Roberts, and in 2020 he had broken from the right-wing to strike down a strict Louisiana regulation of physicians who perform abortions.

Roberts, as became evident, could not be counted on to reverse Roe.

Those calculations diminished in relevance with the addition of Barrett, of whom Republican Sen. Lindsey Graham declared during her confirmation hearing: “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her (Roman Catholic) faith without apology.”

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.

The justices publicly accepted Mississippi’s appeal on May 17, 2021, and stated that they would decide only one question — as Roberts continually remind his colleagues: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”

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.

Roberts, along with the three liberal justices, dissented then and in December after the court had heard oral arguments in the Texas case of Whole Woman’s Health v. Jackson and ruled.

“The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings,” Roberts wrote, adding that “the role of the Supreme Court in our constitutional system” was at stake.

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.

By the time of December oral arguments in the Mississippi case, nationwide evisceration of abortion rights appeared near. Alito’s questions foreshadowed what he would write in the opinion. He suggested he would find Roe “egregiously wrong” and be disinclined toward any “half-measures,” that Roberts would propose. Kavanaugh and Barrett sounded similarly ready to go further than the question presented in the case originally tied to “pre-viability prohibitions” on abortion.

Roberts, on the other hand, wanted to dissolve the viability framework of Roe and the 1992 Planned Parenthood v. Casey. He would vote to uphold Mississippi’s ban on abortions at 15 weeks of pregnancy. But the chief justice believed the court should put off a full reconsideration of the constitutional right to abortion for earlier stages of pregnancy.

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

The May 2 disclosure of the first draft in Dobbs made an already difficult task nearly impossible. It shattered the usual secrecy of negotiations and likely locked in votes, if they were not already solid.

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.”

“They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver,” Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote. “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.”

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.”

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