The effort was nearly impossible after a draft opinion overturning Roe v. Wade was leaked in May, according to multiple sources familiar with the talks. Chief Justice John Roberts privately pleaded with fellow conservatives to preserve the constitutional right to abortion until the very last minute.
Even though Roberts made repeated attempts throughout the final weeks of the session, it doesn’t seem likely that his best candidate, Justice Brett Kavanaugh, was ever close to changing his previous vote.
The high-stakes abortion rights internal drama, which erupted in late April when justices first learned the draft opinion would soon be published, has new information that CNN has obtained.
Tensions over an investigation into the origin of the leak that involved obtaining cell phone data from law clerks and some permanent court employees led to significant disputes over the fate of the 1973 Roe, which were then accompanied by conflicts.
In the past, Roberts has voted differently or has persuaded others to do so in favour of institutionalist, middle-ground outcomes like preserving the Affordable Care Act.
Some right-wing justices and conservatives outside the court have expressed suspicion about this pattern.
According to numerous sources who spoke with CNN, conservatives were alarmed by Roberts’ overtures this spring, especially to Kavanaugh, while liberals were encouraged by the possibility that the chief could affect the outcome of the most closely watched case in decades.
Following Politico’s publication of the draft, conservatives pushed their allies to try to speed up the release of the final decision, lest something unexpectedly endanger their majority.
The sudden public nature of the situation thwarted Roberts’ efforts to persuade, which were challenging even from the beginning. Usually, he can work in secret, requesting and making concessions, without anyone outside the court knowing how he or other justices have voted or what they may be writing.
Kavanaugh had said he wanted to overturn Roe during the oral arguments in December, and CNN later discovered that he actually voted that way during a secret justices’ conference session.
However, the 2018 nominee of the outgoing President Donald Trump, who had only been confirmed by the Senate after expressing respect for Roe, has previously wavered and been susceptible to Roberts’ persuasion.
Since they both served in the George H.W. Bush administration in the early 1990s, the two men have known one another.
Roberts, who is 67 years old and 10 years older than Kavanaugh, served as the US solicitor general’s deputy at the time, and Kavanaugh was a brand-new lawyer.
They have comparable prep school backgrounds, Roman Catholic upbringings, and Ivy League educations (Roberts, Harvard; Kavanaugh, Yale).
Now that they share a home in Maryland, they are so close to one another that pro-choice demonstrators occasionally visit both residences on the same evening.
Roberts’ Actions Were Anticipated by Conservatives
Despite the leaked preview on May 2, the high court’s decision in Dobbs v. Jackson Women’s Health Organization came down on June 24 and hit America like a thunderbolt.
The decision has sparked debate among women and medical professionals as well as prompted state legislatures to take action.
Some are attempting to place more restrictions on expectant mothers while others are attempting to protect their right to an abortion.
The 5–4 decision represented a startling break from precedent that had been established for fifty years, which has alarmed the court in its own particular way.
The final judgment broke the court’s long-standing tradition of adhering to judicial restraint and precedent.
As the decision has been seen as the result of politics rather than objective decision-making, polls show a significant decline in the public’s approval of the court.
Roberts’ actions against Kavanaugh and, to a lesser extent, the most recent conservative justice, Amy Coney Barrett, were expected.
Some pro-lifers and members of the conservative movement feared that Roberts would persuade Kavanaugh or Barrett to depart from Justice Samuel Alito’s draft opinion, which flatly rejected Roe v. Wade and the rights of women to their private lives.
Roberts is rumoured to be working to save a portion of Roe, but 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 “may be trying to turn another Justice now.”
Roberts was indeed trying, CNN’s sources said, adding that by the end of that April week, the justices had learned that Politico had acquired Alito’s initial draft of the Dobbs decision from February.
Through the afternoon of May 2, when all nine were present for a live-streamed memorial at the court for the late Justice John Paul Stevens, Roberts and his coworkers endured several anxious days in silence while anticipating the publication of the document.
At 8:32 that evening, Politico published its initial report on the draft.
Roberts opened an inquiry into the possible perpetrators of “this betrayal of the confidences of the Court.” He promised that the proceedings in court “will not be affected in any way.”
But of course, it was, particularly in lessening any chance he might have had to unseat the five-justice bloc determined to overturn Roe.
The aggressive leak investigation made the tensions already present between the justices, their law clerks, and other staff members in the nine chambers worse.
Gail Curley, the court marshal, as previously reported by CNN, requested that the one-year-term law clerks who work for the justices sign affidavits about the leak and provide cell phone data.
CNN recently learned that she also obtained electronic devices from some long-term employees who frequently interact with the justices.
The conflict between everyone grew as protests got underway, fencing and barricades were put up around the court, and some customary end-of-session lunches and parties were abandoned.
The court’s right-wing supermajority, which included Roberts aside from abortion rights, was growing, aggravating everything and posing the greatest consequence for all Americans.
The 6-3 decision by the court increased the right to bear arms, favoured religious conservatives, and reduced environmental regulation.
Roberts had a hand in a number of those decisions. It was defeat all around for the three remaining liberal justices who had some hope that the chief justice would temper their fellow conservatives on the issue of abortion rights.
Justices began to reexamine Roe after Ginsburg’s passing.
The death of pro-choice Justice Ruth Bader Ginsburg and the sudden Texas abortion controversy involving a ban at six weeks of pregnancy provided two timely developments that helped Mississippi officials change their initial defence of the state’s 15-week abortion ban into a broad attack on Roe.
Mississippi had been unsuccessful in lower courts because its ban went against Supreme Court precedent that dates back to Roe and was upheld in 1992.
This precedent forbids states from interfering with a woman’s decision to have an abortion before the fetus can survive outside the womb, which is usually at around 23 weeks.
The Mississippi case came before the Supreme Court in the summer of 2020, and on September 18, just days before a justices’ conference was scheduled to discuss it, Ginsburg passed away.
Barrett, who opposes abortion rights, was nominated right away by then-President Donald Trump, and on October 26 the Senate confirmed her.
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Without Barrett, the Mississippi petition might have been rejected, as it had previously been in cases involving abortion bans.
Sure, the required four votes could have been obtained to accept the case, but there would not have been a certain fifth to secure a majority vote against Roe.
Alito, Kavanaugh, Justices Clarence Thomas, and Neil Gorsuch all disapproved of the high court’s prior rulings on abortion rights based on their prior statements and records.
Before Barrett replaced Ginsburg, the fifth conservative was Roberts, who had split from the right in 2020 to overturn a stringent Louisiana law governing doctors who perform abortions.
As it soon became clear, Roberts couldn’t be trusted to overturn Roe.
With Barrett’s inclusion, those calculations lost significance. Republican Sen. Lindsey Graham stated during Barrett’s confirmation hearing that she was “the first woman in American history to be nominated who is unashamedly pro-life and embraces her (Roman Catholic) faith without apology.”
