By Jonathon Van Maren
It has been just over a month since the U.S. Supreme Court overturned Roe v. Wade, and we are beginning to learn more about the process behind the Dobbs decision—and hearing from the justices themselves. Justice Samuel Alito, the author of the majority opinion, has publicly mocked the foreign leaders who condemned the Dobbs decision, and anonymous sources are confirming what many suspected: that Chief Justice John Roberts wanted to save Roe v. Wade but failed.
In an unexpected twist, sources claim that Roberts failed in part because of the leak of the draft opinion in May. According to CNN, the justices began to scramble when they discovered, in late April, that the draft decision would soon be published by the media. An investigation into the leak included seizing the cell phone data of court employees and law clerks and has thus far been inconclusive (at least as far as we know). Roberts apparently hoped to rule in favor of the Mississippi abortion ban while saving Roe, and attempted to convince Justice Brett Kavanaugh (and to a lesser extent, Amy Coney Barrett) to join him.
But the leak, according to CNN, made it nearly impossible for Roberts to operate privately and persuasively. Once Alito’s draft went public, conservative justices pushed their colleagues to release the decision; several of the justices had apparently suspected that Roberts would take this tack. When the leak hit, there was a five-justice bloc determined to overturn Roe, and Politico’s publication of the draft only solidified their position. It is safe to say that Politico’s decision to publish the draft likely had the opposite of their intended effect.
Not so long ago, Justice John Roberts was staunchly anti-Roe—as I noted prior to Dobbs, he was considered a rock-ribbed pro-lifer when he was nominated, and his wife has worked professionally in the pro-life movement for years. Considering his record, it is impossible not to conclude that he cares more about the political reputation of the Court than whether Roe is good or bad law (or millions of aborted babies). The fact that this is obvious likely made his appeals to fellow conservative justices more difficult, and although he lobbied Kavanaugh in the final weeks of the session, it seems unlikely that Kavanaugh considered deviating from his stated position during the oral arguments in December.
Still, Roberts has pulled off last-minute switches in the past—as in the case of Obamacare—and CNN noted that this might have been the case again: “The May 2 disclosure of the first draft in Dobbs made an already difficult task nearly impossible. It shattered the usual secrecy of negotiations and likely locked in votes, if they were not already solid. To the extent that liberals had hoped that the original vote by conservatives would change, that hope faded. Meanwhile, CNN has learned, Politico’s disclosure accelerated the urgency of the conservative side to try to issue the opinion before any other possible disruptions. As Roberts kept trying to prevent total reversal of Roe, the three liberals worked on a joint dissent that recalled the three-justice plurality opinion in Planned Parenthood v. Casey.”
The overturn of Roe v. Wade did precisely what Roberts feared—the ire directed at the Court came from all corners and from many foreign leaders (some of whom, ironically, preside over abortion regimes that are significantly more restrictive than the Mississippi law in question). In a rare moment, Justice Samuel Alito responded to the backlash in a July 21 speech in Rome to the Religious Liberty Conference.
“I had the honor this term of writing I think the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law,” he said to laughter. “One of these was Boris Johnson, but he paid the price. Post hoc ergo propter hoc, right? But others are still in office. President Macron and Prime Minister Trudeau, I believe, are two. But what really wounded me was when the Duke of Sussex addressed the United Nations and seemed to compare the decision whose name may not be spoken with the Russian attack on Ukraine.” (The last comment is a reference to a line in Prince Harry’s UN speech: “From the horrific war in Ukraine to the rolling back of constitutional rights here in the United States, we are witnessing a global assault on democracy and freedom…”)
Justice Samuel Alito is an American hero who was given the opportunity to eviscerate a Supreme Court decision that resulted in the destruction of more than sixty million unborn children. Chief Justice John Roberts failed to meet the historical moment because he insisted on playing politics with human life. And the mainstream media, led by Politico, may have ensured that he failed in his attempt to save Roe. The twists and turns of Providence truly are something to behold.