The Story Behind the Fall of Roe v. Wade Just Got Stranger—and More Infuriating

On Friday morning, the New York Times dropped an exceptionally well-reported piece by Jodi Kantor and Adam Liptak sketching out the flaccid arc of Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade. Dobbs ought not to have been brought to the Supreme Court, argued there, or decided as it was decided in the spring of 2022, so it is fascinating and infuriating to get an inside look at exactly how it happened. It’s a credit to Kantor and Liptak that they were able to find sources willing to confirm that every step of the Dobbs appeal was a pro forma, overdetermined, and ends-driven slam dunk for a conservative legal movement that had no regard for precedent, doctrine, or the appearance of legitimacy and a decadeslong commitment to ending Roe.

But the true shock of their piece lies in fact that none of it is shocking: Samuel Alito came to the court wishing to overturn Roe and lied about that fact at his confirmation hearings; Neil Gorsuch didn’t even bother to read the draft opinion authored by Alito before he agreed to put his name to it, or else secretly viewed a draft before it was circulated to other justices; Amy Coney Barrett has someone in her chambers who wants us to see her as a tormented and complicated woman, even as she refused to do anything but rubber-stamp an opinion that would confirm to the world that she was a token, partisan, politics-haired appointment. And Brett Kavanaugh? He is precisely as absurdly self-important, scheming, untrustworthy, and ineffectual as we all knew him to be.

One could add a note here about Clarence Thomas’ former clerk, who devised the whole case as a bait-and-switch to kill Roe at the same time he was palling around with Clarence and Ginni Thomas at a West Virginia resort. But really, why? The point is not that any part of this meticulously reported piece will surprise anyone who has watched the high court stagger deeper and deeper into disgrace and moral irrelevance. The point is that every single thing described by the New York Times is now deemed ordinary, lawful, acceptable, and accepted at the highest court of the land.

The gist of the report confirms what we all suspected: There was never any real doubt about the outcome of Dobbs. During their confirmation hearings, Gorsuch, Kavanaugh, and Barrett presented themselves as open-minded on abortion, and generally respectful of precedent protecting women’s reproductive autonomy. Once on the court, all three were eager to light that precedent on fire. The only question was one of pacing and optics: Just how quickly, the conservatives wondered, could they overturn Roe v. Wade without delegitimizing the court and cementing their own status as partisan hacks? We learn now that Kavanaugh successfully lobbied the conservatives to conceal their decision to take up Dobbs from the public, waiting until May of 2021 to announce a vote that took place in the preceeding January. The purpose of this delay was to put distance between the announcement and Justice Ruth Bader Ginsburg’s death. Kavanaugh did not want the public to think RBG’s passing was the sole reason why the court would now overturn Roe. But it absolutely was.

We learn, too, that Alito shared his draft of Dobbs with several fellow conservative justices without the knowledge of the others, locking in their votes behind closed doors. We learn that Kavanaugh pretended to waffle on his commitment to reversing Roe, when all signs indicate that he was gunning for abortion from day one. It is clear that Scott Stewart, the former Thomas clerk who defended Mississippi’s abortion ban, transformed the case from an incremental attack on Roe to a full-on assault, after attending a reunion with Thomas. We learn that every major aspect of Dobbs was preordained once Barrett replaced Ginsburg: Five Republican-appointed justices wanted to abolish the constitutional right to abortion; they disagreed exclusively over how it would look and how best to deceive and mollify the American public; they fretted about how fast they could rewrite the law without revealing the fundamentally partisan nature of their ruling.

It’s no accident that this week, too, that yet more blockbuster reporting from ProPublica revealed that the body built to police Supreme Court conduct, the Judicial Conference, has been the government equivalent of one of those inflatable air dancers that flops around outside a carwash. Faced with decades of evidence of ethics breaches by Thomas, the Judicial Conference has waved its inflatable arms around, flopped and flapped, accomplished nothing, and then covered it up. When billionaires and oligarchs seek to buy shares in a conservative justice, the only thing standing in their way is the same enterprise pointing you to the $4900 beige Ford Pinto.

So while there is a lot to say about the Times revelations, let’s be perfectly clear about this: Every aspect of Dobbs departed from the court’s norms and tradition. Granting certiorari because the composition of the court has changed; allowing a party to radically change its position after cert has been granted; pre-gaming opinion drafts so justices can sign off within minutes; refusing to change material errors in a leaked draft? It’s all legal! It’s all constitutional! It’s how the court rolls! And if any of this surprises or upsets you, be advised there’s nothing you can do about it.

We all read The Brethren. We aren’t children. We fully expect logrolling, horse-trading, behind-the-scenes maneuvering, and outcome-driven decision-making from justices, who attempt to hide from us the fact that they are mere politicians, they’re just poor. We are told by the Supreme Court’s defenders that no such thing as crass political maneuvering could ever happen at the sacred temple on One First Street. We are assured that the robed oracles merely read briefs, take votes, and render judgments in good-faith, largely as a result of the noise-canceling originalist headphones they wear once they are sworn into office. The New York Times piece is stunning and unsurprising: The only thing that is worth tracking is that this maneuvering is now so publicly known ,reported in the Times like the fundamentally political story that it so obviously is. The sources who leaked this information, possibly including a justice, evidently believed it was important for Americans to know what went down here.

With each new peek behind the curtain, this fantasy becomes more difficult to buy into, even for those desperate to believe. It turns out that the justices—at least five of them on the right—are functionally indistinguishable from cynical partisan lawmakers making deals in the Senate cloakroom. It turns out that abortion rights vanished in America because five conservatives barely tried to hide the fact that they could do that, simply because they could do that. And it turns out that they’re increasingly bad at covering their tracks.