On Friday, I wrote a nearly 6,000-word post about the New York Times bombshell report on Dobbs. Now, after having some time to process the information, I will share ten reflections on how Justices Kavanaugh and Barrett voted in Dobbs. I will operate under the assumption that the reporting is accurate, but with the usual caveats about making assumptions.
First, the Dobbs petition was filed before Justice Ginsburg’s death, and there were questions about whether there were four votes to grant before RBG’s death. In June Medical, the three solid votes to reverse Roe were from Justices Thomas, Alito, and Gorsuch. Justice Kavanaugh’s stance was uncertain, but there were favorable signs. There was ambiguity surrounding Chief Justice Roberts as well.
By the time the Dobbs petition was up for its first potential conference, Justice Ginsburg had passed away, and the nomination of Justice Barrett had been announced. This lessened the pressure on Justice Kavanaugh as he no longer needed to be the decisive vote for certiorari, and didn’t have to rely on Chief Justice Roberts. Justice Alito rescheduled the petition multiple times as he waited for Justice Barrett’s confirmation, indicating that he may have believed she was a sure vote.
The petition was finally considered at the January 8, 2021 conference, with five justices reportedly voting to grant, including Kavanaugh and Barrett. Despite this, Kavanaugh proposed that the case should be relisted, delaying the argument until the following term. This episode supports the theory that the Court manipulated the timing of the docket through relists, reschedules, and CVSGs.
Justice Barrett gave an ultimatum that if the Court did not postpone the case, she would flip her vote to “deny.” It is unclear if Kavanaugh made a similar ultimatum. It is possible that both Kavanaugh and Barrett agreed to this tactic, forcing the conservatives to go along with relisting the case. It is also unclear if the reporting from the Times is from Kavanaugh’s perspective.
During the relists, Justice Breyer apparently urged Kavanaugh not to “rush,” and Kavanaugh was receptive but ultimately not persuaded. The Times does not report that Breyer was trying to persuade Barrett, leading to a one-sided perspective.
The conservatives went along with Kavanaugh’s plan, and the Court relisted the petition for about four months. Eventually, Barrett flipped her vote from “grant” to “deny,” the reasons for which are unclear.
After Dobbs was granted, the Court had to deal with the S.B. 8 litigation, which was an essential element of Dobbs. Justices Kavanaugh and Barrett signaled that they would find a way to stop S.B. 8, and there was a strong reaction on the right to their arguments, which may have influenced their decisions in Dobbs.
When Dobbs was argued, Whole Woman’s Health had already been decided. Kavanaugh and Barrett’s arguments in S.B. 8 led to strong reactions in the conservative legal movement, signaling to them what would likely happen if they caved on Dobbs. This may have cleared the path for Dobbs.
In essence, the New York Times report sheds light on the dynamics and decision-making process of the Supreme Court as it relates to Dobbs. However, it is important to consider multiple perspectives and sources to gain a clearer and more objective understanding.