According to the paper, Samuel Alito, the author of the opinion in Dobbs v Jackson, the case that struck down Roe v Wade, from 1973, circulated his draft at 11.16am on 10 February 2022.
Citing two people who saw communications between the justices, the Times said: “After a justice shares an opinion inside the court, other members scrutinise it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.
“But this time, despite the document’s length, Justice Neil M Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes.”
Three other conservatives – Clarence Thomas, Amy Coney Barrett and Brett Kavanaugh – signed on in the following days.
“None requested a single alteration,” the Times said. “The responses looked like a display of conservative force and discipline.”
In a statement to the Guardian, Caroline Ciccone, president of the watchdog group Accountable.US, said: “These revelations offer yet another example of the current supreme court plowing through usual guardrails and tossing precedent aside to deliver an extreme decision ultimately impacting millions of Americans.”
Alito’s draft opinion was leaked, then published by Politico in May. An investigation did not name a culprit. Critics have postulated that the leak might have come from the right, as a way to lock in votes. Alito, who has complained that the leak made rightwingers on the court “targets of assassination”, has also said the leaker was not a conservative and claimed to have a “pretty good idea” who it was.
The full opinion was passed down in June. Conservatives celebrated a great victory. Progressives protested. Since then, attacks on abortion rights including stringent bans in Republican-run states have fueled a series of Democratic election victories.
High-level Democratic sources have said the party will centre the issue in next year’s elections, as a rare subject on which they enjoy a distinct polling advantage.
The court remains at the centre of debate over abortion rights, this week saying it would hear a case about access to mifepristone, one of two pills typically used in the US for abortions by medication, a key part of maintaining access after Dobbs.
Ciccone said the Times report “begs serious questions as the high court takes up another critical abortion decision this term – one pushed through the courts by far-right interests and influencers like Leonard Leo [of the Federalist Society] who knew their agenda was too radical and unpopular to ever win at the ballot box”.
In its exhaustive reporting of how Dobbs came to be decided, and maneuvering among the justices, the Times said Amy Coney Barrett, a Catholic conservative appointed by Donald Trump to replace Ruth Bader Ginsburg, a liberal lion and protector of women’s rights, ultimately voted not to hear the case. But, the paper said, four men – Gorsuch, Kavanaugh, Alito and Thomas – decided to move forward.
The conservative chief justice, John Roberts, and the liberal Stephen Breyer then sought to find middle ground. Roberts voted with the liberals to uphold Roe but the ultimate decision went the other way, 5-4 as Barrett ended up voting to knock down Roe.
“Guided by Justice Alito”, the Times said, the court “engineered a titanic shift in the law”.
Author: Martin Pengelly in Washington
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