What We Learned from the NY Times Behind-the-Scenes Revelations About Dobbs

On Friday, The New York Times published what it billed as "the inside story of how the Supreme Court overturned the constitutional right to abortion." Based on what looks like very dogged reporting by investigative reporter Jodi Kantor and long-time Times SCOTUS beat reporter Adam Liptak, the story reveals a number of important details. It adds key facts to the historical record. It does not, however, fundamentally change our understanding of what the current iteration of the Roberts Court--led on hot-button issues by hard-right Justices and not John Roberts--is all about. Here, I'll offer a number of observations about what the excellent reporting by Kantor and Liptak reveals.

1) Relisting. For months and months, the Court repeatedly "relisted" the Dobbs case on its docket of cases pending for a decision whether or not to grant certiorari. At the time, Court watchers were unsure why. Now we know. It turns out that there were enough votes to grant review in Dobbs in time to decide it by the end of the October 2020 Term in June 2021 but that Justices Kavanaugh and Barrett (who was then new to the Court) didn't want the public to think that, as the Times story puts a point attributed to (but not quoting) Chief Justice Roberts, the Court "had been waiting for a new justice to take on a challenge to Roe."

In other words, if the Court followed its usual procedure and docketed the case for briefing and oral argument when there were at least four votes to grant cert, it could look to the public as though the Court was doing what it was in fact doing--jumping at the chance to overturn Roe. The Times story says that Justice Kavanaugh came up with the plan to pretend that the Court was considering whether to grant in Dobbs long after it had secretly made that decision, but all of the Justices who participated in this ruse should be bathed in shame for making an already opaque government institution even less transparent.

2) No changes. Despite the length (98 pages) and controversial nature of Justice Alito's draft opinion in Dobbs, we learn from the Times story that Justice Gorsuch wrote to the conference that he would join it only ten minutes after it circulated. Justices Thomas, Kavanaugh, and Barrett at least slept on it before hitting "send" on the "join me" button, but none of them asked for any changes. What gives?

By far the most likely explanation for what Kantor and Liptak call "a display of conservative force and discipline" is that Justice Alito coordinated and possibly shared the exact text of his draft with the four Justices who wound up signing on before circulating to the full conference.

The procedure itself is not necessarily problematic. A Justice assigned to write a majority opinion might privately consult with one or more other Justices who have expressed broad agreement on a case's outcome but might have different views about details that were not discussed in the conference. What's shocking here is that the draft Justice Alito first circulated to the conference--with its description of the impositions imposed by abortion restrictions as merely how some women "feel" about the subject and its reliance on the wisdom of witch-burner/rape-culture-hero Sir Matthew Hale--was the version that he apparently arrived at after sharing it with the supposedly more moderate conservative Justices Kavanaugh and Barrett.

3) The leak's effect. Kantor and Liptak don't have any new information or theories about who leaked the Dobbs opinion. They do, however, report that the leak's internal effect was to freeze the Justices who had already joined Justice Alito's draft in place, thereby undercutting the efforts that the Chief and (to a lesser extent) Justice Breyer were undertaking to try to woo Justices Kavanaugh and/or Barrett towards a more moderate position. The existence of those efforts is hardly surprising, nor is the impact of the leak, but confirmation of both contributes to our understanding of the decision-making dynamic inside the Court.

Insofar as the leaker was someone canny (like a Justice or a law clerk), they would likely have anticipated that the leak would have the effect it did. After all, many of us outside observers worried that it would. If the leaker wanted to see Roe overruled, was sophisticated, and knew that the Chief was trying to peel away one or more Justices from the majority, then leaking made some sense. Alternatively, the leaker might have wanted to see Roe preserved but was not very sophisticated about a leak's likely effect and/or out of the loop.

We might never know who the leaker was, but the reporting here somewhat confirms that the most likely candidates are a conservative Justice, a conservative law clerk, or a liberal member of the Court staff with less sophistication.

4) Accuracy. The Times story says it was pieced together based "on internal documents, contemporaneous notes and interviews with more than a dozen people from the court — both conservative and liberal — who had real-time knowledge of the proceedings." I don't doubt the diligence of the reporting, but I would sound a note of caution. Thirty years before Dobbs, the Supreme Court decided Planned Parenthood v. Casey, which reaffirmed what the lead opinion called Roe's "central holding," even as it allowed greater regulation of abortion than Roe itself. Because that lead opinion was jointly authored by three appointees of Republican Presidents who were thought to be potential votes to overturn Roe, there was intense public interest in the case. Some of the resulting reporting focused on me.

Why me? Because I was one of Justice Kennedy's law clerks and had co-authored a book with Professor Laurence Tribe, who was known to be a supporter of Roe. (The book itself, on p. 117, described Roe as "a closer and more difficult case" than Bowers v. Hardwick, which we described as "egregiously wrong." I should sue Justice Alito for copyright infringement! But I digress.)  

Meanwhile, I have never said a word to a reporter about my role, if any, in Casey or any other case in Justice Kennedy's chambers the year I clerked, but I have from time to time categorically denied the most preposterous news and opinion stories, which accused me of having had a Svengali-like influence over him. I assume that the reporters who wrote such stories had genuine sources, but I also assume that the sources had their own agendas.

With Casey, it was not difficult to infer that agenda. Conservatives for the last decade-plus have occasionally felt betrayed by Chief Justice Roberts; they felt considerably more aggrieved by Justice Kennedy, who not only refused to overturn Roe but was the Court's most assertive champion of rights for gay and lesbian Americans. Describing Justice Kennedy as easily bamboozled by a twenty-something law clerk was a way of delegitimating his views and attacking him.

Because I'm much further from the principals in Dobbs, I don't know what the motives of the sources who talked to Kantor and Liptak are. However, even excellent and skeptical reporters looking for corroboration with documents and multiple sources are susceptible to being given a version of events that the sources want to promote. Accordingly, although I believe we know more about what happened inside the Court in Dobbs than we did before, I would caution my readers against assuming that the Times story is fully accurate.