Published December 15, 2023
The New York Times has published a long article today that undertakes to provide the “inside story of how the Supreme Court overturned the [purported] constitutional right to abortion.” Reporters Jodi Kantor and Adam Liptak draw on “internal documents, contemporaneous notes and interviews with more than a dozen people from the court—both liberal and conservative—who had real-time knowledge of the proceedings.”
The article provides an interesting narrative (and even quotes a blog post of mine), but its perspective strikes me as one-sided in various important respects. A few examples and observations:
1. The article claims that the Court “tested the boundaries of how cases are decided” by “allow[ing] Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while [Justice Ginsburg] was alive into a full assault on Roe.” It quotes with evident approval law professor Richard Re’s assertion that the Court “barreled over each of its normal procedural guardrails.”
But as I wrote in response to Re’s similar argument while Dobbs was pending, there was no bait-and-switch:
As the Chief Justice acknowledged at oral argument, the question whether Roe and Casey should be overturned is “fairly included” in the question on which the Court granted certiorari and is thus properly presented. Indeed, Mississippi’s certiorari petition argues at length against the soundness of Roe and Casey (as I spelled out in point 2 of this post). When the Court, after months of deliberation, finally granted cert in Dobbs, everyone—surely including the justices who voted to grant cert—understood that Roe and Casey were at stake. The briefing on both sides—including over 100 amicus briefs—focused heavily on this issue.
2. The article takes seriously the “middle position” that Chief Justice Roberts, late in the process, was still trying to persuade at least one conservative colleague to adopt: uphold Mississippi’s 15-week-law but avoid “overturning Roe outright.” But conservative legal scholars demonstrated that there was in fact no coherent middle way in Dobbs, so it is difficult to see why the Chief’s position would have had “potential power.”
Indeed, the article itself reveals that when Alito circulated his draft opinion on February 10, Justices Thomas, Gorsuch, Kavanaugh, and Barrett promptly embraced it without “request[ing] a single alteration.” That provided an impressive “display of conservative force and discipline.” The justices had already been exposed to the Chief’s feckless search for a middle ground at oral argument. Why, after joining the Alito draft, would they have had any reason to reconsider?
3. By exaggerating the supposed appeal of the Chief’s position, the article sets up its claim that the notorious leak of the Alito draft in early May 2022 “helped lock in the result.” The article is agnostic on the motive of the leaker. But “[w]hatever the intent, the breach became a strike on the chief, Justice Breyer and their quest for compromise, said several people from the court.” Hmmm, I wonder which “people from the court” might be inclined to have viewed it that way—and to have disregarded the predictably devastating effect that the leak had on the safety of the justices in the majority.
It sure seems to me much more plausible that the leak was a desperate effort to put intense political pressure on the conservative justices so that one of them would abandon the Alito majority.
In an impressive act of amnesia, the reporters state simply, “Some conservative commentators theorized that a liberal had shared the draft to raise alarms.” They make no mention of the many folks on the Left who immediately celebrated the leaker, such as legal commentator Ian Millhiser: “Seriously, shout out to whoever the hero was within the Supreme Court who said “f*** it! Let’s burn this place down.” (Expletive redacted.) Smarter folks on the Left quickly figured out that it was better to try to blame a conservative for the leak, and the article does much to try to invite that implausible conclusion.
4. In its opening paragraphs, the article gives the impression that conservative justices hastily signed on to Alito’s draft:
After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.
But this time, despite the document’s length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh.
Three paragraphs later, it suggests that something nefarious might have happened:
Justice Alito appeared to have pregamed [the draft] among some of the conservative justices, out of view from other colleagues, to safeguard a coalition more fragile than it looked.
Only three paragraphs later do the reporters acknowledge that Alito’s “apparent selective preview of the draft opinion” was a “time-honored” practice at the Court.
The article could easily have presented this clearly from the outset. E.g.: “Alito, consistent with a time-honored practice at the Court, meticulously worked out the draft opinion with his conservative colleagues before circulating it to the full Court. That enabled them to sign on promptly, without requesting any changes.” But as written it instead invites clickbait attacks on the justices in the majority.
5. On the reporters’ interviews with “more than a dozen people from the court—both liberal and conservative—who had real-time knowledge of the proceedings”: Their phrasing allows the possibility that only one “conservative” spoke with them, and they would surely classify, say, the Chief Justice as a “conservative.” So count me skeptical that the sources are as balanced as this passage might try to suggest and that they include anyone supportive of the Dobbs majority.
The reporters also state: “Because of the institution’s [i.e., the Supreme Court’s] insistence on confidentiality, they [their sources] spoke on the condition of anonymity.” As anyone who works at the Court ought to recognize, leaking “on the condition of anonymity” violates a duty of confidentiality. The fact that it makes it easier for the violator to escape detection does not remotely justify it.
Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.