He manipulated the court’s norms to overturn Roe. And he’ll do it again whenever he chooses.
This piece in the NY Times about the deliberations in the Dobbs decision is a barn burner. I’ve included a gift link so that you can read the whole thing, but here is how it opens.
Alito is a beast, as are those in his thuggish crew:
On Feb. 10 last year, Justice Samuel A. Alito Jr. showed his eight colleagues how he intended to uproot the constitutional right to abortion.
At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women’s Health Organization. After a justice shares an opinion inside the court, other members scrutinize 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, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration. The responses looked like a display of conservative force and discipline.
In the months since, that draft turned into a leak, then law, then the rare Supreme Court decision that affects the entire country, reshaping elections, the practice of medicine and a fundamental aspect of being female. The story of how this happened has seemed obvious: The constitutional right to abortion effectively died with Justice Ruth Bader Ginsburg, whom President Donald J. Trump replaced with a favorite of the anti-abortion movement, Justice Barrett.
But that version is far from complete. Justice Barrett, selected to clinch the court’s conservative supermajority and deliver the nearly 50-year goal of the religious right, opposed even taking up the case. When the jurists were debating Mississippi’s request to hear it, she first voted in favor — but later switched to a no, according to several court insiders and a written tally. Four male justices, a minority of the court, chose to move ahead anyway, with Justice Kavanaugh providing the final vote.
Those dynamics help explain why the responses stacked up so speedily to the draft opinion in February 2022: Justice Alito appeared to have pregamed it among some of the conservative justices, out of view from other colleagues, to safeguard a coalition more fragile than it looked.
The Supreme Court deliberates in secret, and those who speak can be cast out of the fold. To piece together the hidden narrative of how the court, guided by Justice Alito, engineered a titanic shift in the law, The New York Times drew 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. Because of the institution’s insistence on confidentiality, they spoke on the condition of anonymity.
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At every stage of the Dobbs litigation, Justice Alito faced impediments: a case that initially looked inauspicious, reservations by two conservative justices and efforts by colleagues to pull off a compromise. Chief Justice John G. Roberts Jr., a conservative, along with the liberal Justice Stephen G. Breyer, worked to prevent or at least limit the outcome. Justice Breyer even considered trying to save Roe v. Wade — the 1973 ruling that established the right to abortion — by significantly eroding it.
To dismantle that decision, Justice Alito and others had to push hard, the records and interviews show. Some steps, like his apparent selective preview of the draft opinion, were time-honored ones. But in overturning Roe, the court set aside more than precedent: It tested the boundaries of how cases are decided.
Justice Ginsburg’s death hung over the process. For months, the court delayed announcing its decision to hear the case, creating the appearance of distance from her passing. The justices later allowed Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe — the kind of move that has prompted dismissals of other cases.
The most glaring irregularity was the leak to Politico of Justice Alito’s draft. The identity and motive of the person who disclosed it remains unknown, but the effect of the breach is clear: It helped lock in the result, The Times found, undercutting Chief Justice Roberts and Justice Breyer’s quest to find a middle ground.
In the Dobbs case, the court “barreled over each of its normal procedural guardrails,” wrote Richard M. Re, a University of Virginia law professor and former Kavanaugh clerk on a federal appellate court, adding that “the court compromised its own deliberative process.”
In his opinion, Justice Alito wrote that the court was stepping away from the abortion debate and intended to “return that authority to the people and their elected representatives.” Since the court’s ruling, access to abortion has dropped overall, with 21 states banning or restricting it and some others reinforcing abortion protections.
I don’t know if this dynamic and the reporting on it helps or hurts the chances that they go easy on the Mifepristone case. I don’t think we can know. But if I had to guess it may have a better outcome but only because there is enough partisan hackery in that majority that they may see it as useful for the Republican Party not to start another firestorm so soon. But they will do it eventually. The Alito majority is going to be around for a long time.
It’s Happy Hollandaise time, folks… 🙂 If you’d like to toss something in the old Hullabaloo stocking, you can do so here: