The Dobbs Story

 Jodi Kantor and Adam Liptak at NYT:

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.”