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bitchy | Chief Justice John Roberts tried to convince Brett Kavanaugh to uphold Roe


In early May, the Supreme Court’s Dobbs decision was leaked to Politico. The official decision wasn’t released until June 24, a Friday. I remember the Politico story coming out on May 2, the night of the Met Gala, and it was like an earthquake. Even though everyone knew that the right-wing Christofascists had the votes on the Court, it was still shocking that they actually did it. The Dobbs decision was decided 5-4, with Chief Justice John Roberts writing a squeamish concurrence in judgment opinion, basically siding with the other Republican-appointed justices but saying that Roe and Casey shouldn’t be thrown out completely.

Immediately following the Politico leak, there was so much performative outrage about “who leaked this” and “the sanctity of SCOTUS decisions must be protected at all costs.” Chief Justice Roberts wanted the FBI to investigate the leak, remember? And remember how I said it felt like the Republicans were running a play, and we simply couldn’t see all of the moving parts yet? Well, in the months since the Politico leak, there hasn’t been any movement in the investigation. And then CNN dropped this story on Tuesday:

Chief Justice John Roberts privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end, but May’s unprecedented leak of a draft opinion reversing Roe v. Wade made the effort all but impossible, multiple sources familiar with negotiations told CNN.

It appears unlikely that Roberts’ best prospect — Justice Brett Kavanaugh — was ever close to switching his earlier vote, despite Roberts’ attempts that continued through the final weeks of the session.

New details obtained by CNN provide insight into the high-stakes internal abortion-rights drama that intensified in late April when justices first learned the draft opinion would soon be published. Serious conflicts over the fate of the 1973 Roe were then accompanied by tensions over an investigation into the source of the leak that included obtaining cell phone data from law clerks and some permanent court employees.

In the past, Roberts himself has switched his vote, or persuaded others to do so, toward middle-ground, institutionalist outcomes, such as saving the Affordable Care Act. It’s a pattern that has generated suspicion among some right-wing justices and conservatives outside the court.

Multiple sources told CNN that Roberts’ overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the chief could change the outcome in the most closely watched case in decades. Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decision, lest anything suddenly threaten their majority.

Roberts’ persuasive efforts, difficult even from the start, were thwarted by the sudden public nature of the state of play. He can usually work in private, seeking and offering concessions, without anyone beyond the court knowing how he or other individual justices have voted or what they may be writing.

[From CNN]

I remember several commenters war-gamed this exact theory, that Roberts was squishy on forced-birthism and that he was trying to persuade Kavanaugh to uphold the fundamental legal precedent of Roe. I remember people theorizing that the Politico leak came from one of the Christofascist justices as a way to get Kavanaugh and Roberts “in line.” CNN says that directly too, that Alito, Thomas, Barrett and Gorsuch knew that Roberts was trying to peel off Kavanaugh and convince him to change his vote. The Politico leak was almost certainly a power play by one of the right-wing justices. My guess is Clarence Thomas. Weird that we’re not still hearing from Republicans about how the Politico leak must be investigated and the leaker must be punished.

Photos courtesy of Cover Images, Instar, Avalon Red, Backgrid.


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