John Roberts Was Lobbying Kavanaugh to Save Roe. Then the Draft Opinion Leaked

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justice-john-roberts-supreme-court-1800 - Credit: Jabin Botsford - Pool/Getty Images
justice-john-roberts-supreme-court-1800 - Credit: Jabin Botsford - Pool/Getty Images

Immediately after the draft Supreme Court decision to overturn Roe v. Wade was released, conservatives began bleating about how the leak was the work of a nefarious liberal clerk who wanted to put the opinion out to pressure the court’s conservatives to change their minds. It’s possible (repeat possible) that that’s what happened, but if so, publicizing the draft had precisely the opposite effect, according to a new report from CNN.

Per the report, the leak of the draft Dobbs v. Jackson decision foiled Chief Justice John Roberts’ attempts to persuade Justice Brett Kavanaugh to act as Roe’s saving vote. Sources told CNN that Roberts continued to try and sway the junior justice even after the leak of the draft opinion, despite public and private pressure from conservatives for the court to solidify its decision. “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.”

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Roberts, who would ultimately vote to uphold the Mississippi law disputed under Dobbs but filed a seperate concurrence disagreeing with the majority decision to strike down Roe, has had success persuading Kavanaugh to dissent from the conservative bloc in the past, most notably his decision to side with the liberal justices in upholding the Affordable Care Act. Those with knowledge of the situation tell CNN that Roberts already faced an uphill battle in convincing Kavanaugh to vote in favor of abortion rights even before the leak: Kavanaugh had previously indicated his desire to overturn Roe and had voted against it in a private justices’ conference.

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So who did leak the draft opinion? That’s still unknown. What is clear is that the conservative case of “It was clearly a lib because look who had the motivation” is likely bullshit — and it always was.

An investigation into the source of the leak exacerbated tensions among the judges and their staff, and it killed the possibility of swing votes for fear that a justice who changed their vote from that in the draft opinion would be perceived as having caved to public pressure.

Following the final 6-3 decision in Dobbs, which overturned the right to abortion established by Roe, Justice Clarence Thomas indicated that the justices should reconsider previous rulings that established the rights to contraception, same-sex marriage, and protections for same-sex relationships under the same principles of privacy as Roe.

While some have seen Roberts as a potential ally toward the more liberal justices, the slate of recent Supreme Court decisions, including on gun rights, religious rights, and regulatory powers for federal agencies indicate that Roberts remains favorable to the conservative agenda. This all makes Thomas’ suggestion that the court review a slew of legal protections for minorities of all kinds even more alarming, as Roberts’ negotiating powers — and his ability to keep the rabid right at bay — appear to have already been weakened.

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