Politico’s publication last week of Justice Samuel Alito’s first draft in a Mississippi abortion dispute opened an exceptional window on the inner workings of the Supreme Court.
Yet, as significant as the disclosure was – involving such an early draft in a case of such magnitude – much remains hidden.
Nearly three months had passed from the February 10 draft to its publication, and a possible two additional months remain in the negotiations. Opportunities exist for shifting votes and alternative legal rationales.
Based on his past patterns, Chief Justice John Roberts could still be privately writing an alternative opinion to Alito’s wholesale reversal of Roe v. Wade. Roberts’ tactics from other cases suggest he would have been sharing parts of his opinion with select justices, in confidence, to craft the most persuasive arguments possible for an opposing position.
Conservatives in the majority with Alito, meanwhile, may be drafting separate writings that could ultimately strengthen or weaken the Alito opinion.
The court’s remaining liberals may be working with Roberts toward some compromise that could preserve parts of Roe v. Wade while putting much of their muscle into dissenting statements protesting any rollback of the 1973 landmark ruling that made abortion legal nationwide.
Politico wrote on Wednesday that it had learned that Alito’s opinion “remains the court’s only circulated draft in the pending Mississippi abortion case.”
If that is the situation – and CNN has not verified that information – multiple other important communications could still be underway among the justices, including those presumably in the majority with Alito: Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
CNN’s past reporting on the high court reveals that justices engage in a constant conversation via written memo, yet also seek out private, one-on-one conversations. Within days of the distribution of a first draft, justices typically alert the author to whether they will be joining it or, alternatively, penning a dissent. Such memos do not preclude individual justices asking for changes in the reasoning of a decision or, in rare situations, switching votes.
Before the Politico disclosure, sources close to the court told CNN that Roberts had failed to persuade anyone in the conservative majority to keep some right to end a pregnancy in the early weeks. But there was no indication that Roberts, or the three dissenting liberals – Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan – had given up.
The court’s two prior landmark decisions on the right to abortion, in 1973 and then in the 1992 Planned Parenthood v. Casey ruling, emerged from delicate negotiations that included switched votes and last-minute compromises.
A majority in constant talks
The 98-page draft that Politico published appears to have been circulated to all eight of the other justices. There is no indication, however, of how they reacted.
Some of the language is especially caustic.
“Until the latter part of the 20th century,” Alito declared, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”
And, as written, there are conflicting statements about how far it would go in eviscerating protections for personal privacy and marriage rights.
Beyond the rhetoric and legal reasoning, it is possible that one or two justices on the right wing have reservations about overturning Roe with this Mississippi case. The justices had agreed to hear only the question of whether the state’s ban on abortions after 15 weeks of pregnancy conflicted with precedent protecting a woman’s abortion decision before a fetus is viable, at about 23 weeks, and able to survive outside the womb.
Alito’s draft opinion obliterates Roe and a half-century of privacy rights.
Even before the Politico revelation last week, signals from the court indicated the majority was open to the reversal of Roe. The five-justice conservative bloc had allowed a Texas virtual abortion ban to take effect even though the prohibition clearly conflicted with the constitutional guarantees of Roe.
During the December 1 arguments in the Mississippi case, those conservatives expressed further skepticism of Roe’s principles.
But many behind-the-scenes variables exist. Roberts holds his cards close as he tries to build his case. In addition to whatever persuasive endeavors he has undertaken, internal debate is likely still churning among the Alito five.
Rarely does Kavanaugh sign on to a controversial decision without writing a separate opinion explaining himself. In past terms, CNN has learned in prior reporting, such statements have not been distributed to other justices until May and June.
Further, even though Kavanaugh often sides with Alito on the bottom line of a case, he seeks to separate himself from Alito’s acidic rhetoric. In a 2020 gay rights dispute, for example, the two dissented – along with Thomas – as the majority interpreted US anti-discrimination law to cover gay and transgender workers.
Kavanaugh initially told Alito he would join his dissenting statement but then broke off and in mid-May sent colleagues a solo draft dissent. It was released with the Bostock v. Clayton County, Georgia, decision that June.
Roberts’ institutionalist moves
Chief Justice Roberts, based on his comments during December arguments and later CNN reporting, was prepared to uphold the Mississippi 15-week abortion ban but declined to support a blanket reversal of Roe v. Wade.
He has hewed toward institutionalist outcomes in the past, most notably in 2012, when he switched multiple votes and eventually joined the liberals to uphold the Affordable Care Act – a move that earned him enduring enmity among conservatives.
The court’s institutional stature and integrity rest in large part on its adherence to precedent and the ideal that even when court membership changes the law remains steady. That principle guided the pivotal justices who voted in 1992 to uphold Roe even though they might not have agreed with the 1973 decision.
During negotiations on the 1992 abortion controversy from Pennsylvania, Justices Sandra Day O’Connor, Anthony Kennedy and David Souter worked secretly at first, without consulting other colleagues, toward a compromise. All three were appointees of GOP presidents, although all three had records to the left of the current Republican appointees.
When the case was handed down, O’Connor, the country’s first female justice, said from the bench, “Some of us as individuals find abortion offensive to our most basic principles of morality, but that can’t control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”
The crucial vote in that dispute was cast by Kennedy, who had earlier expressed strong opposition to abortion rights. He decided in the end that the decision should be left to a woman.
Kennedy struggled until the end, and it just so happens that it was 30 years ago this month, on May 29, that he dropped a personal note to Justice Harry Blackmun, the author of Roe, letting him know of his changed view.
Writing a month before the ruling would become public, Kennedy told Blackmun, “I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.”