Behind the Scenes at the Dismantling of Roe v. Wade

During the January 8 conference, the case was opposed by the three liberal justices (Breyer, Kagan, and Sotomayor) as well as the chief justice. The five conservative justices voted in favor, as confirmed by a written tally and multiple sources familiar with the discussions. Justice Kavanaugh acknowledged that they couldn’t avoid a case like this.

At a subsequent meeting, Justice Dobbs made an unconventional suggestion. The court could delay the public announcement of its decision to take the case. They could repeatedly list Dobbs on the public docket and then announce the decision to proceed in the spring. This would allow them to avoid a rushed schedule and observe other abortion cases in lower courts. It would also create the perception that the court was still deliberating on whether to move forward, despite already having taken a vote, and distance themselves from Justice Ginsburg’s death.

Justices Alito, Gorsuch, and Thomas disagreed and wanted to proceed sooner, hearing the case in the current term. Some justices raised concerns about the appropriateness of Justice Kavanaugh’s proposal, considering that the case had been on the docket since September.

However, Justice Barrett, the newest member of the court, took a firm stance. As the only woman in the conservative bloc and a mother of seven children, her personal views on abortion were well-known. She told Justice Alito that it was not the right time, considering she had joined the court less than three months ago. If the others insisted on hearing the case that term, she would change her vote to oppose taking it.

The chief justice also expressed concerns, worrying that the court would appear as if it had been waiting for a new justice to challenge Roe. Justice Alito, fearing that a delay could impact the outcome, asked Justice Kavanaugh if his vote was firm, to which he responded affirmatively.

The Kavanaugh plan prevailed, and as the winter turned to spring in 2021, the case continued to be re-listed on the docket week after week. Conservatives outside the court grew increasingly anxious, emphasizing the importance of seizing the moment. Justices Alito and Thomas, both in their 70s, understood that the conservative supermajority would not last forever.

In April 2021, ten months after the petition was filed, legal commentator Ed Whelan expressed concern that if the court failed to grant certiorari in Dobbs, conservative justices who didn’t provide the necessary votes would face significant disappointment.

Within the conservative legal movement, which had experienced defections from Republican appointees in the past, there were concerns about Justice Kavanaugh. His approach to abortion law had been characterized by attempts to find compromises and postpone difficult decisions. When his name appeared on a shortlist for the court, supporters of other potential nominees attacked him in an anonymous memo, accusing him of abandoning conservative principles.

Nevertheless, the conservative faction rallied behind Kavanaugh after his nomination, particularly in response to the allegations of past sexual misconduct, which he vehemently denied.
In January 2021, the US Supreme Court justices were divided over whether to take on a major abortion case, Dobbs v. Jackson Women’s Health Organization. The three liberal justices and Chief Justice John Roberts were opposed to hearing the case, while the five conservative justices were in favor. Justice Brett Kavanaugh suggested a plan to delay the announcement of the decision, which would push the case to the next term and allow the court to monitor other abortion cases in lower courts. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas disagreed and wanted to move forward with the case that term. However, Justice Amy Coney Barrett, the newest conservative justice, made a strong stand against hearing the case that term, citing her recent appointment and concerns about the court’s appearance. Ultimately, Kavanaugh’s plan prevailed, and the case was repeatedly relisted on the docket. This decision caused anxiety among conservatives outside the court who believed it was crucial to seize the moment while the conservative supermajority lasted. Justice Kavanaugh had previously been seen as a potential flight risk for conservative supporters due to his attempts to find compromises and postpone difficult decisions on abortion. However, after his nomination and the allegations of sexual misconduct against him, the conservative legal movement closed ranks around him.

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