The May leak of the Supreme Court draft opinion signaling the overturning of Roe v. Wade quashed an attempt by Chief Justice John Roberts to persuade his Republican-appointed colleague, Justice Brett Kavanaugh, to vote to preserve abortion rights.
Roberts’s attempts at swaying Kavanaugh persisted throughout the spring high court term and into the final week of the session, according to a new CNN report. However, the May 2 leaked draft opinion of the decision in Dobbs v. Jackson Women’s Health Organization, which was ultimately handed down in a 6-3 ruling on June 24 that gave states the ability to restrict or limit abortion access significantly, severely hampered Roberts’s abilities when Kavanaugh’s intention to strike down Roe became public record.
“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,” according to the report.
ROBERTS AND KAVANAUGH HELPED LIBERAL JUSTICES SECURE SOME SUPREME COURT WINS
The chief justice’s own vote in the case served as a centerpiece of the divide between the rest of the court’s five members of the conservative bloc, as Roberts voted to uphold the 15-week Mississippi abortion ban law in question under Dobbs but filed a separate concurrence disagreeing with the majority’s decision to strike down Roe.
“Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share,” Roberts wrote in his concurrence, placing himself between the majority opinion authored by Samuel Alito and the court’s Democratic-appointed justices who dissented, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Since Kavanaugh’s 2018 appointment to the high court, Roberts has exhibited some success in convincing the justice to dissent from the conservative bloc, notably in his record to side with the liberal justices in upholding the Affordable Care Act.
Still, sources with knowledge about Roberts’s efforts this term have said the chief justice was hard-pressed to convince Kavanaugh to vote differently, as the justice had previously expressed his desire to overturn Roe during December oral arguments and at a private justices conference shortly after.
While Roberts called for the investigation into the leak and decried the action as a “betrayal of the confidences of the Court,” the court’s investigation of the incident, led by Supreme Court Marshal Gail Curley, has not come forward with any findings about the origin of the leak.
Several conservative advocates and lawmakers immediately called for criminal punishment against the unidentified leaker, while right-leaning pundits such as Fox News host Laura Ingraham implied the leak involved a liberal clerk and that it was an attempt to affect the expected outcome.
However, the revelation of Roberts’s intentions to persuade Kavanaugh, along with those motives being further foiled by the leak, appears to have had the opposite effect.
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Six days after the leak, NPR’s longtime legal affairs reporter wrote about a “leading theory” that a conservative clerk may have been the one to leak the opinion as a strategy to lock in the justices who voted alongside Alito, as Roberts was the only justice at the time whose final opinion was not clearly articulated by the leaked draft.
“There’s another theory that it was an outraged liberal clerk, but I think the only one that makes sense is that it came from somebody who was afraid this majority might not hold — that Chief Justice Roberts might persuade one of the conservatives to come over to him,” Nina Totenberg said.
