A draft of the Supreme Court decision that has been overturned Roe v. Wade was leaked to the public this spring, Chief Justice John Roberts was in the process of privately trying to dissuade conservative bloc justices from voting in favor of upending abortion rights — but the leak brought all potential compromises to a halt.
The details of behind-the-scenes negotiations were reported on by CNN Tuesday morning. Multiple sources spoke to the outlet about how abortion rights are recognized in Roe ultimately ended up being eradicated in this term’s case, Dobbs v. Jackson.
Roberts concurred with the five conservative justices in the case and said that Mississippi should be allowed restrictions on abortions after 15-weeks of pregnancy. But he disagreed with overturning Roe entirely, writing that the Court “should adhere closely to principles of judicial restraint,” and that “repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis” would be a mistake.
Roberts had tried unsuccessfully to persuade Justice Brett Kavanaugh to join his concurring view. The result of the decision was in line with the three liberal bloc justices and would have allowed a 15-week ban, but it would have kept the right for abortion intact across the country.
Kavanaugh, who previously spoke to the Senate during his nomination hearings. that Roe was settled law, had initially voted for Alito’s anti-abortion position after oral arguments in December. But, according to CNN, Kavanaugh was open to hearing Roberts’s words on the matter.
Roberts faced an uphill battle in getting Kavanaugh to agree with his position, but not an impossible one — although it is uncommon for a justice to change their mind after their initial vote.
Roberts’s negotiations with other justices were reportedly worrisome to conservatives, CNN reported.
Once Alito’s opinion had been leaked,Negotiations between Roberts, Kavanaugh, came to an abrupt halt. Sources speaking to CNN saidIt was the catalyst that stopped any compromise in the Dobbs decision.
Conservative commentators and lawmakers dismissed the leak as an attempt to pressure justices to change their minds by a liberal-aligned Court staffer. Sen. Lindsey Graham (R-South Carolina), for instance, claimed the leak was evidence that “the radical Left [was] hell-bent on reshaping institutions that have stood in the way of the outcomes they desire.”
Many believe that the leak was not from a right-wing source, as this latest report suggests.
The reporting is “more support for the theory that conservatives had the most to gain from the leak,” wrote Josh Block, an attorney with the American Civil Liberty Union’s LGBT Rights Project.
Will Saletan, a writer at the conservative website Bulwark, agreed with Block’s assessment. The abrupt way in which the leak stopped negotiations led by Roberts is “evidence that the leak may have come from the right,” Saletan said.
Zach Wahls, a Democratic Senator from Iowa said that the reporting was from CNN His long-held suspicions were confirmed.
“Have been confident from the beginning that the leak came from the office of a right wing justice, and this all but confirms it,” he tweeted.
“Still firmly believe this leak came from the Alito and/or Thomas camp to lock those votes in,” wrote user @Angry_Staffer, a popular anti Donald Trump Twitter account. “My guess is that Roberts was having some luck with Kavanaugh, but after the leak, a changed vote would have looked like the result of intimidation.”
Some also speculated that specific justices — and perhaps their activist spouses — may have played a role in the leak.
“This is why many people believe the leak came from Ginni or Clarence Thomas because it ended John Roberts’s ability to change anyone’s vote,” said Rachel LarrisSenior Media Relations Specialist at George Washington University
One day after the draft was leaked, it was made publicly. Roberts ordered the Court to conduct an internal investigation into what he described as an “egregious breach” of the institution. Since that time, however, no new developments in the investigation have been made public — and it’s unclear if the investigation is still open, or whether any outside agencies are looking into the matter.
