Thursday, May 23, 2024

During the Jan. 8 conference, the case had opposition from the three liberals – Justices Breyer, Elena Kagan and Sonia Sotomayor – as well as the chief justice. On the other hand, the five other conservatives were in favor, as per a written tally and reports from several individuals familiar with the discussions. Justice Kavanaugh expressed that they couldn’t avoid a case like this to the group.

Dobbs had met all the criteria to proceed, but during a subsequent meeting, an unusual proposal was made by him. The court could delay the public announcement of its decision to take the case. They could repeatedly re-list Dobbs on the public docket and then announce the decision in the spring, which would push it to the next term. This would avoid a rushed schedule and allow the court to observe other abortion cases in the lower courts, as reported by two people aware of the discussion. This plan would also give the impression that the court was still debating whether to move forward, even though a vote had been taken, and create the appearance of distance from Justice Ginsburg’s death.

Justices Alito, Gorsuch and Thomas disagreed with this and wanted to proceed sooner to hear the case in that term. Some justices questioned whether Justice Kavanaugh’s proposal was appropriate, given that the case had been on the docket since September.

However, Justice Barrett, the newest member of the court, took a strong stance. As the only woman in the conservative bloc, and with seven children and known personal views on abortion, she told Justice Alito that “this was not the time,” according to two people aware of her comment. She emphasized that she had only arrived not even three months before and if others intended to hear the case that term, she would change her vote to oppose taking it.

There was also expressed concern from the chief justice, stating that the court could appear as if it had been waiting for a new justice to take on a challenge to Roe. Justice Alito, seemingly concerned about the potential impact of a delay on the outcome, asked Justice Kavanaugh if his vote was solid, to which Kavanaugh affirmed yes.

The Kavanaugh plan prevailed, and as the winter of 2021 turned to spring, the case was repeatedly re-listed week after week on the docket. Anxiety was felt among conservatives outside the court, expressing the importance of seizing the moment, especially given the ages of Justices Alito and Thomas. “If the court somehow ends up failing to grant certiorari in Dobbs, there will justifiably be staggering disappointment with any conservative justices who failed to provide the needed votes,” wrote Ed Whelan, a legal commentator.

In the conservative legal movement, which had felt let down by defections by Republican appointees, Justice Kavanaugh was viewed as a potential flight risk. His approach to abortion law was characterized by attempts to find compromises and defer difficult decisions. Despite being accused of long-ago sexual misconduct, the right closed ranks around him following his nomination, particularly after his name had been attacked in an anonymous memo claiming he had a pattern of “abandoning conservative principles.”

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