Chief Justice John Roberts pleaded with fellow conservatives on the Supreme Court to think twice about repealing Roe v. Wade before the landmark precedent was ultimately overturned in June, according to a report.
The unprecedented leak of the Supreme Court’s opinion kneecapped Roberts’ efforts to change his colleagues’ minds, sources told CNN.
Roberts tried to save Roe
Conservative court watchers, wary of Roberts’ moderate leanings, had expected the justice to try to sway Brett Kavanaugh and Amy Coney Barrett to save Roe, CNN reported. Roberts did exactly that, it turns out.
Kavanaugh had signaled in December oral arguments on Mississippi’s 15-week abortion ban that he was ready to end Roe, and he voted that way afterward in a private conference.
Whatever chance Roberts might have had to change minds evaporated once the draft opinion overturning Roe was leaked at the beginning of May to Politico. Roberts opened an investigation into the unprecedented breach, calling it a “betrayal.”
The leak made Roberts’ conservative colleagues anxious to release the opinion without delay, sources told CNN. It would take almost two months until the opinion, Dobbs V. Jackson Women’s Health Organization, was released on June 24. The leaker has yet to be identified.
The Supreme Court’s conservatives ultimately stuck together and voted to end Roe. Three of those five justices, Barrett, Kavanaugh, and Neil Gorsuch, were appointed by President Trump.
Court rejected Roberts’ middle course
In his concurring opinion in Dobbs, Roberts said it was not necessary to overturn Roe to decide the legality of Mississippi’s ban on abortion and that ending Roe would cause a “serious jolt to the legal system.”
Roberts had advocated partially overturning Roe by ending the “viability” cut-off, which he said “never made any sense,” while leaving “for another day whether to reject any right to an abortion at all.”
The majority said that Roberts’ approach would only delay resolving the question the court was asked to consider.
“In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.”
Samuel Alito, writing for the majority, said that Roe was “egregiously wrong from the start.” The decision nullified the right to an abortion that was established in Roe and returned the matter of abortion to the states.