Editor’s Note: Adapted from “NINE BLACK ROBES: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences,” by Joan Biskupic, to be published April 4 by William Morrow.
Within days of Justice Ruth Bader Ginsburg’s memorial service in late September 2020, boxes of her files and other office possessions were moved down to a dark, windowless theater on the Supreme Court’s ground floor, where – before the ongoing pandemic – tourists could watch a film about court operations.
Grieving aides to the justice who’d served 27 years and become a cultural icon known as the “Notorious RBG” sorted through the chambers’ contents there.
The abrupt mandate from Chief Justice John Roberts’ administrative team to clear out Ginsburg’s office and make way for the next justice broke from the common practice of allowing staff sufficient time to move and providing a new justice with temporary quarters if needed while permanent chambers were readied.
It upset employees throughout the building. They were aware that in the weeks before Ginsburg died, her staff had labored to ensure she had case documents at hand, whether in the hospital or at home. They were exhausted from all the memorial arrangements, which had attracted thousands of people to Washington.
But the confirmation of then-President Donald Trump’s chosen successor, Indiana-based US appeals court Judge Amy Coney Barrett, was as much a fait accompli at the court as in the political sphere.
That behind-the-scenes drama and internal tensions over cases that followed, accelerated by all three Trump appointees, led to a new level of distrust and discord among the justices that lingers today.
Almost as abruptly as Ginsburg’s possessions were cast out, the court’s 6-3 conservative majority began ravaging the vestiges of Ginsburg’s work on women’s rights and access to abortion. The internal negotiations on the case of Dobbs v. Jackson Women’s Health Organization, which ended up reversing nearly a half century of abortion rights, were tightly tied to Ginsburg’s death and the succession of Barrett.
The abortion controversy also surfaced a pattern of double-signaling to colleagues and people beyond the court by Justice Brett Kavanaugh, Trump’s second appointee. Kavanaugh has long been concerned with appearances. He remains torn between his allegiance to conservative backers from his 2018 nomination fight and his desire for acceptance among the legal elites who shunned him.
Since Kavanaugh joined the bench, a documented pattern reflects the lengths that he goes to in order to appear conciliatory.
A previously unreported example occurred in 2019, when Kavanaugh joined a dissent denigrating a US district judge for rejecting the Trump administration’s attempt to add a citizenship question to the 2020 census form. A Supreme Court source revealed that Kavanaugh then quietly sent the judge a personal note saying he actually respected him.
Kavanaugh similarly sought to have it both ways a few months later, when he tried to soften a vote against LGBTQ rights by asserting respect for gay interests.
“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” he wrote in dissent as a six-justice majority expansively interpreted a 1964 law prohibiting sex discrimination so that it would cover LGBTQ employees. “They have exhibited extraordinary vision, tenacity, and grit – battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives.”
Momentum at the court and in the states against abortion rights
The state of Mississippi and other opponents of abortion had perfect timing. Ginsburg was still alive and serving in June 2020 when the state first filed its petition to the Supreme Court defending a ban on abortions at 15 weeks of pregnancy. The state had lost in lower courts because its prohibition clashed with the 1973 Roe v. Wade and the 1992 Planned Parenthood v. Casey, which upheld the right of a woman to end a pregnancy before the fetus was viable, that is, could live outside the womb.
Around the time the justices were scheduled to first decide whether to grant or reject the Mississippi appeal, Ginsburg died.
After Barrett settled in, the court announced in May 2021 that it would hear Mississippi’s appeal later in the year. The case had enormous potential. Roe’s viability standard was nearly 50 years old. And in previous cases, the justices had consistently accepted the fetal viability benchmark established in Roe, that women were free to make the abortion choice before viability, at about 23 weeks.
Meanwhile, other Republican-run states were inspired by Barrett’s succession of Ginsburg to write anti-abortion laws. The Texas Legislature passed a statute, SB 8, that forbade abortions at the first sign of cardiac activity, roughly six weeks into pregnancy. Legislators added a shrewd twist to their so-called “heartbeat law,” delegating the enforcement of the ban to private citizens. It was a way to insulate state officials from lawsuits and try to ensure that judges would not block enforcement of the law.
So before they got to the Mississippi case, Supreme Court justices heard the Texas controversy on an expedited schedule. A five-justice far-right majority – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Kavanaugh and Barrett – a lineup made possible only because Ginsburg was no longer on the bench – decided to allow the Texas law to take effect.
Kavanaugh and Barrett, however, had appeared during oral arguments in that Texas case to be going in the opposite direction, to vote to block the Texas law. Kavanaugh particularly questioned whether, if states could block abortion rights, they could do the same for firearm rights and free speech. Barrett sounded troubled that the Texas law was written in a way that would deny any challenger a “full constitutional defense.”
Their remarks were widely interpreted by outside observers to suggest they were ready to rule against Texas and to allow abortion clinics to challenge the law preventing abortions after about six weeks. More importantly, some of the justices who believed that law blatantly unconstitutional interpreted their colleagues’ comments that way, too, and believed there would be a turning point in the Texas case. But when the votes were cast in private, the justices on the left realized they had been misled by what they had heard in public.
Kavanaugh often conveyed conflicting signals as he dealt with fellow justices. In an abortion case in 2020, with Ginsburg still sitting, there was a five-justice majority to invalidate a Louisiana physician regulation based on a 2016 precedent involving similar physician credentialling. Roberts had joined the four liberals at the time to oppose the regulation, based on precedent.
Kavanaugh suggested in a series of confidential memos to his colleagues that he wanted to avoid resolving the merits of the case brought by abortion providers and instead send it back to lower court judges for further hearings. Kavanaugh argued it was not clear that physicians would be unable to obtain credentials and abortion clinics would shutter – a point that conflicted with the trial judge’s finding after a six-day trial.
No other justice wanted to sidestep the case, and in the end he joined dissenters who favored Louisiana over the abortion providers challenging the physician requirement.
Kavanaugh’s criticism of a lower court judge’s findings went further in the census questionnaire dispute. He was one of three justices who particularly denigrated US District Judge Jesse Furman for rejecting the Trump administration’s attempt to add a citizenship question to the 2020 census form. Furman had discovered and emphasized in his decision that Commerce Secretary Wilbur Ross was motivated by a clutch of outside Trump political advisers, including Steve Bannon.
Writing for a dissenting bloc, Thomas suggested Furman was biased and had crossed a line – a bold complaint against a fellow federal judge – declaring, “I do not deny that a judge predisposed to distrust the Secretary or the administration could arrange those facts on a corkboard and – with a jar of pins and a spool of string – create an eye-catching conspiracy web.”
The later Kavanaugh note to Furman showed his efforts to appear conciliatory: He joined an opinion challenging Furman’s integrity but then wrote the judge a note that pleaded the opposite.
Five justices ready to overturn Roe
By late 2021, it was becoming clear that Thomas, Alito, Gorsuch, Kavanaugh and Barrett wanted to end Roe, irrespective of what they had told senators about adherence to precedent during their confirmation hearings.
Barrett had been especially skillful in deflecting questions about her personal opposition to abortion during her hearing, even as then-Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican, declared, “This is the first time in American history that we’ve nominated a woman who’s unashamedly pro-life and embraces her faith without apology.”
During the hearings, then-California Democratic Sen. Kamala Harris, now vice president, said, “I would suggest that we not pretend that we don’t know how this nominee views a woman’s right to choose and make her own health care decisions.”
Barrett rejected Harris’ implication that she would be persuaded by her personal feelings against abortion when resolving a case, telling senators of Harris, “No, she is not right.”
Just over a year later, during the justices’ December 2021 internal debate on the Mississippi abortion law, Roberts tried to offer a compromise that would uphold the 15-week ban (dismantling the viability firewall) but preserve some right to abortion in the earlier weeks of pregnancy.
The five justices to his right, however, wanted to entirely end the constitutional rights of Roe.
In past abortion cases, votes sometimes shifted over the weeks and months of closed-door negotiations. But this majority was different. It would not be shaken by entreaties from Roberts or the three liberal justices then serving, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
The court was hurtling toward a June 2022 announcement ending nearly a half century of constitutional interpretation. When a draft of its decision, authored by Alito, was leaked and published by Politico on May 2, suddenly it was all in the public eye. The stridently written 98-page document had been foreshadowed by the court’s action in the earlier Texas dispute, in which the justices had already allowed the dissolution of abortion rights in the country’s second most populous state.
The leak also had the effect of hindering internal debate among the justices in the Dobbs case. Justices later privately revealed that public disclosure of the 5-4 split and the tone of the opinion outright rejecting Roe v. Wade effectively froze the votes. That eliminated the opportunity for compromise, as can happen with hard-fought cases in the final weeks of negotiation.
Distrust among justices is building
The leak that accompanied that radical revision of women’s privacy rights further revealed a distrust among the justices that had been building for years.
Thomas, who usually spoke only of how well the justices got along, told a Dallas audience that May that the justices couldn’t help but look over their shoulders, wondering who was responsible for the disclosure of the Dobbs draft.
Thomas contrasted that with the court atmosphere before 2005, when Roberts joined the court as chief justice. Before then, Thomas said, “We actually trusted each other.”
Asked about the celebrated friendship of Ginsburg and the late Scalia, who served 1986-2016, Thomas said, “This is not the court of that era. I sat with Ruth Ginsburg for almost 30 years. And she was actually an easy colleague for me. You knew where she was.”
It was a revealing comment from a justice who himself was known inside the court for abhorring the kind of cagey negotiations Roberts often undertook.
But changes in the two years since Barrett had succeeded Ginsburg were even more consequential. Thomas, who had often been a solo dissenter, was prevailing across the board. He and Alito, both in their 70s, were demonstrating a sense of urgency, to take advantage of the majority they had and thrust the law rightward on multiple fronts.
The remaining liberals were profoundly frustrated. In 2020, they had help craft decisions that favored abortion rights, LGBTQ protections and preserving the Obama-era program giving some young immigrants a path to citizenship. Just one year earlier, in 2021, they had managed to be part of several compromises with conservatives, for example, to reject the third legal challenge to Obamacare.
Now they expected to win nothing – then and in the future. When the three liberals worked together on a joint dissent to the Mississippi case, they added forebodingly: “No one should be confident that this majority is done with its work.”