Report gives an inside look at how the Supreme Court overturned Roe v. Wade

Amna Nawaz:

The landmark Supreme Court decision over turning Roe v. Wade nearly 18 months ago upended the American landscape of reproductive rights. State laws popped up restricting abortion access. The issue became central to some elections.

And we have heard many stories of confusion from patients and doctors trying to understand the new limits.

Geoff Bennett:

A new story from The New York Times explains some of the internal dynamics of the court, from how the justices decided to hear the case to how the decision was drafted and when it was ultimately handed down.

Jodi Kantor is one of the authors of that report and she joins us now.

Thank you for being with us.

Jodi, many of the justices, including Justice Amy Coney Barrett, who was picked by Donald Trump in part to help overturn Roe, according to your reporting, initially opposed even hearing the case? What changed?

Jodi Kantor, The New York Times:

When Adam Liptak and I were reporting the story, that was one of the big surprises, because, of course, she did eventually vote to overturn the law.

But voting whether to take the case or not is a different matter. And, initially, what she said was that she wanted to vote to grant to hear the case, but that she had timing reservations, that she didn't want to hear the case that term, which some of her conservative colleagues were pushing to do.

And then, months later, she actually ended up changing her vote from a grant to a deny. So, it didn't make a substantive difference. You only need four votes, which Justice Alito had to move the case forward. But it meant that the case moved forward with a bare minimum of the court, only four votes. And, by the way, those were all male justices.

Geoff Bennett:

There's another detail in your reporting, that the justices initially voted in January of 2021 to take up the case.

This was months before they publicly announced that they would hear it. And you report that it was Justice Brett Kavanaugh who pushed for a delay to create the appearance of distance from Justice Ruth Bader Ginsburg's death.

Why did he think that was important?

Jodi Kantor:

So one of the things that he cited was that he wanted to watch some other abortion cases play out in the lower courts.

But it's really the effect that's so interesting. It pushes the case to the next term. And also it creates this appearance of distance from Justice Ginsburg's death. The court has the vote to grant. The case is clearly moving forward. And yet they essentially withhold the decision from the public for months.

Geoff Bennett:

And once Justice Samuel Alito wrote that draft of his opinion and sent it to his colleagues, you report that the other conservative justices quickly signed onto it without requesting any changes.

And that was Alito's way, reportedly, of trying to safeguard a coalition around overturning Roe. How and why did the leak of his opinion to Politico in May of 2022, how did that cement the ruling?

Jodi Kantor:

So, one of our discoveries is that there were really extensive attempts to craft compromises. We don't know if they would have worked. We don't know what prospect they had at succeeding.

But Chief Justice John Roberts, Justice Stephen Breyer, the first thing they did is they tried to stop the case from being heard. Then, when it went forward, Justice Roberts — and this is public. He's described this in oral arguments and in his opinion — he had a kind of 15-week compromise, where he wanted to uphold the Mississippi law, which restricted abortion to 15 weeks, but he didn't want to overturn all of Roe.

And he was all — even though that was a very lonely position this court, he only needed one more vote to make that happen. And, in fact, Justice Stephen Breyer was considering joining him in that position. That would have been just symbolic.

But if, say, Justice Brett Kavanaugh had joined that position as well, the entire outcome would have been different. And so the leak came just as those efforts were under way, and it rendered them hopeless. Justices' votes are secret for a reason, because they want room to change their minds, which sometimes they do, before the official opinion comes out.

And in this case, because everything became so public, it really cemented the results and locked them in. So we don't know who leaked this opinion, but we can say what the effect was, which was to really lock in the final result.

Geoff Bennett:

Pulitzer Prize-winning journalist Jodi Kantor of The New York Times, thanks for sharing your reporting with us.

Jodi Kantor:

Thank you.