Amy Coney Barrett reportedly opposed hearing case that overturned Roe v. Wade
Supreme Court Justice Amy Coney Barrett objected to her colleagues taking up the case that led to the overturning of Roe v. Wade last year, according to a new account of how the decision was reached.
The justices first discussed hearing Dobbs v. Jackson Women’s Health Organization in January 2021 — but delayed oral arguments and a final ruling until the following year in a rare maneuver, sources told the New York Times.
During a fraught conference meeting on Jan. 8, in which Chief Justice John Roberts joined the three liberal justices in opposition to taking the case, Barrett threatened to reverse her initial vote in favor of hearing arguments, reportedly telling Justice Samuel Alito it was “not the time” to consider returning the abortion question to the states.
Justice Brett Kavanaugh ultimately suggested that the Supreme Court hold off on a public announcement of its decision to hear Dobbs until spring 2021, allowing it to be picked up in the following term, which began that October.
Ultimately, the Kavanaugh plan was accepted, but when the court announced on May 17, 2021, that it would hear arguments in Dobbs, Barrett had changed her mind anyway.
Only Alito, Kavanaugh, Neil Gorsuch and Clarence Thomas — the minimum needed to take up a case — were recorded as voting in favor of hearing Dobbs.
The “delay tactic,” as the Times report calls it, may have also been favored by Roberts and then-Justice Stephen Breyer in a bid to dissuade Kavanaugh and Barrett from overturning Roe.
Breyer in particular opposed the Supreme Court returning to the decision and hoped to convince the younger conservative justices that rushing into a ruling would shake Americans’ trust in the institution, his public statements and private remarks shared with the Times show.
Alito, who authored the Dobbs decision, had first helped delay deliberations on taking the case in the final months of the Trump administration, when Barrett was in the process of being confirmed following the Sept. 18, 2020, death of Justice Ruth Bader Ginsburg.
Barrett, President Donald Trump’s third Supreme Court nominee after Gorsuch and Kavanaugh, was widely seen as the final piece of a conservative supermajority destined to take down Roe.
All three were grilled by Senate Democrats during their confirmation process for their opinions on the landmark 1973 case.
Each was careful to answer that its precedent had been reaffirmed in subsequent rulings, while declining to say whether they would support overturning it.
Their appointments — and the Dobbs ruling — eventually fulfilled a campaign promise of Trump’s during the 2016 presidential debates, when he pledged to “automatically” reverse Roe through Supreme Court nominations.
Mississippi lawmakers passed a measure to ban most abortions after 15 weeks of pregnancy in March 2018, kicking off a years-long legal battle that culminated in the Dobbs decision.
A draft of Alito’s decision — which was endorsed within days by Gorsuch, Thomas, Barrett and Kavanaugh, in that order — was anonymously leaked to Politico in May 2022, setting off a wave of protests and threats against the court’s conservatives.
One California man flew across the country in an attempt to assassinate Kavanaugh and was later arrested outside the justice’s suburban Maryland home carrying a gun, knife, pepper spray and burglary tools.
The leak likely doomed any lingering hopes by Roberts and Breyer that they could persuade their colleagues into making a narrow decision that would both uphold the Mississippi law and Roe.
Supreme Court Marshal Gail Curley was unable to determine the identity of the draft leaker during an investigation that subjected clerks to a high degree of scrutiny while merely questioning justices and not requiring them to sign affidavits.
