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Report: Roberts Lobbied Kavanaugh to Save ‘Roe’; That Was ‘All But Impossible’ After Leak

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OPINION: This article may contain commentary which reflects the author's opinion.


A stunning new report is casting new light on some behind-the-scenes activity involving U.S. Supreme Court Justice John Roberts as the nation’s highest court was considering overturning Roe v. Wade.

According to CNN, sources told the outlet that Roberts attempted to persuade Justice Brett Kavanaugh and possibly Justice Amy Coney Barrett to preserve the ‘Roe’ precedent while also ruling in favor of the Mississippi 15-week abortion ban that was at the center of the case:

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Multiple sources told CNN that 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. Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten the release of the final decision, lest anything suddenly threaten their majority.

Roberts’ persuasive efforts, difficult even from the start, were thwarted by the sudden public nature of the state of play. He can usually work in private, seeking and offering concessions, without anyone beyond the court knowing how he or other individual justices have voted or what they may be writing…

The May 2 disclosure of the first draft in Dobbs made an already difficult task nearly impossible. It shattered the usual secrecy of negotiations and likely locked in votes if they were not already solid.

To the extent that liberals had hoped that the original vote by conservatives would change, that hope faded. Meanwhile, CNN has learned, that Politico’s disclosure accelerated the urgency of the conservative side to try to issue the opinion before any other possible disruptions.

Roberts has famously switched his opinion in the past. In 2012, when it appeared as though the high court would rule that Obamacare’s mandate on Americans to purchase health insurance would be overturned, the chief justice voted instead to preserve the law.

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As for Kavanaugh, CNN noted that he gave off indicators that he was in favor of overturning ‘Roe.’

The network also noted that he voted that way during a private justices’ conference session not long afterward. That said, Kavanaugh has wavered in his views in the past and has at least been open to being persuaded to join Roberts’ opinions, which often run afoul of the other conservatives on the nation’s highest court.

Meanwhile, in April, The Wall Street Journal’s right-leaning editorial board, which has obtained information about internal SCOTUS machinations and discussions in the past, published a piece warning that Roberts may have been attempting to persuade a justice to change his or her vote on ‘Roe’ — speculation that turned out to be correct, according to CNN.

The outlet went on to report that by the end of that week, justices had learned that a draft ‘Roe’ decision written by Samuel Alito had been leaked to Politico, leading them to spend a few nervous days waiting for the report to be published. It was on the same evening that all nine justices paid tribute to the late Justice John Paul Stevens.

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CNN noted that after Politico’s story, which reported that a five-justice majority on the high court had decided to overturn ‘Roe,’ it became all but impossible for any of the justices to then change their minds, as doing so would have been viewed as justices giving in to a public pressure campaign, which would have greatly diminished the credibility of them and the institution.

As for who may have leaked the document, that investigation — ordered by Roberts — may not even be underway any longer, according to The Associated Press.

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“Less than 24 hours after the unprecedented leak of the draft opinion that overturned Roe v. Wade, Chief Justice John Roberts ordered an investigation into the egregious breach,” the AP reported.

“Since then? Silence. The Supreme Court won’t say whether it’s still investigating. The court also won’t say whether the leaker has been identified or whether anyone has been disciplined. Or whether an outside law firm or the FBI has been called in. Or whether the court will ever offer an accounting of what transpired. Or whether it has taken steps to try to prevent a repeat,” the AP added.

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