How a Supreme Court Leak Helped Conservative Justices Unite to Overturn Roe

The leak of Justice Samuel Alito’s draft decision in Dobbs v. Jackson Women’s Health Clinic actually solidified the court’s opinion amid a flurry of behind-the-scenes negotiations, a new report indicates.

An investigation by The New York Times illustrates that the premature opinion, distributed to Politico by an unknown source two months before the court revealed it had ruled to overturn abortion access at a national level, thwarted efforts by Chief Justice John Roberts and liberal Justice Steven Breyer to find a middle ground.

The majority of Supreme Court justices did not want the court to take up Dobbs, according to the Times, including Justice Amy Coney Barrett, who Trump explicitly appointed to the bench to clinch the abortion decision as a longtime goal of the religious right. A fragile minority of the court, four male justices, decided to move forward without her.

But the court waited months to announce that they had decided to weigh in on the seismic case, hoping to distance the whiplash decision from the death of Justice Ruth Bader Ginsburg, a longtime champion of abortion as a bastion for gender equality, the Times noted.

Roberts and Breyer actively worked to curtail the Supreme Court’s landmark decision, attempting to limit the outcome of Alito’s opinion and, by Breyer’s hand, even eroding it entirely in an effort to save most of Roe. But the leak ended that whole compromise effort, helping Alito.

The report also depicts an effort by Alito to force the other conservative justices to help him overturn Roe after Ginsburg passed—including by secretly sharing a draft opinion with conservative allies.

Once Alito circulated his draft opinion among the members of the bench in February 2022, opinions rolled in almost immediately. Within minutes, Justice Neil Gorsuch said he would sign on to the opinion with zero changes. The next morning, Justice Clarence Thomas said the same. Then came ​​Justice Amy Coney Barrett and Justice Brett M. Kavanaugh, all, unusually, with no alterations in mind.

In Dobbs, the court tested the boundaries of how that case, and subsequently all future ones, would be decided. Apart from the shocking leak, the justices also allowed Mississippi to expand its focus in the case, switching its stance from a narrower attempt to curtail abortion access to an outright assault on Roe, the Times wrote.

On Wednesday, the court picked up its next high-stakes abortion access case: a challenge to the 2000 Food and Drug Administration approval of a drug called mifepristone that comprises one-half of what’s more commonly known as the “abortion pill.” Since abortion has become a losing issue for Republicans across the country since the high court’s decision to overturn Roe, several GOP officials have come out publicly slamming the court’s decision to weigh in, predicting a prohibitive outcome.

By and large, most Americans support abortion access. In a 2023 Gallup poll, just 13 percent of surveyed Americans said that abortion should be illegal in all circumstances. Meanwhile, 34 percent said it should be legal under any circumstances, and an additional 13 percent said it should be legal in most circumstances.

Read more at The New York Times.