The recent article in The New York Times about the Supreme Court’s deliberative process in last year’s landmark decision in Dobbs v. Jackson Women’s Health Organization purports to be investigative reporting, but it turns out to be a journalistic hit job. Ed Whelan has done a characteristically thorough job illustrating why (here, here, and here).
The account’s inside information largely consists of details about the timing of the justices’ internal deliberations—not so much their substantive views of the merits of the case, other than to reveal Justice Stephen Breyer’s futile effort to broker a middling decision that would salvage at least part of Roe v. Wade. (Chief Justice John Roberts’ separate concurrence took essentially that position.)
Jodi Kantor, co-author of the Times article, appeared this week on the Strict Scrutiny podcast, which is hosted by three movement liberal law professors who make no effort to disguise their activism. Even their holiday gift guide advocated donating to Planned Parenthood and a host of other radical left-wing groups. Kantor’s decision to participate in that particular show highlights how the Times story is part and parcel of the ongoing left-wing intimidation campaign. The same show featured as guests this year Senator Sheldon Whitehouse and ProPublica’s Justin Elliott and Andrea Bernstein.
While the Times piece claimed to mine many inside sources, its perspective was entirely pro-Roe and repeatedly referenced the thought process of Justice Breyer, suggesting that his clerks if not the justice himself were prime sources. For the others, especially Justice Samuel Alito, Dobbs’ author, and his four originalist colleagues, the article harped on timelines and innuendo to fill in the Times’ massive information gaps.
Kantor said several times during the podcast interview that she couldn’t explain why particular things she reported happened but was more than happy to indulge the three hosts’ reckless speculation. That the four justices joined Alito on his draft soon after it was circulated in February 2022 (after 10 minutes in Justice Neil Gorsuch’s case) was cited as a red flag for the lack of deliberation. It was to the snarky hosts “shockingly fast,” with Gorsuch’s speed “jaw-dropping”—“he’s obviously a speed reader.” The “lack of care and concern for norms and judicious behavior” was “kind of appalling.”
As Ed Whelan wrote, “To anyone who knows anything about the Court, the facts that the reporters set forth ought to make it obvious that Alito worked out his draft in exhaustive detail with Gorsuch and the three other justices who joined it.” The three law professors, all of whom clerked on the Court, must know that that scenario of diligent prior preparation by the five justices in the majority was at least possible. Indeed, later in the same episode they opined about how the Court is perfectly able to move fast when it needs to, in cases like Bush v. Gore and the other emergency petitions it will need to hear on an expedited timeline in the coming weeks. But they nonetheless indulged in hypotheticals that contorted the reported facts in order to advance a narrative that helps the Left.
The speculation extended to the notion that Alito’s coalition might have been fragile and the votes of some of its members attainable for Roberts to peel off. But in the podcast, as in her Times article, Kantor viewed the effect of the leak of the Dobbs opinion draft in May 2022 as locking in Alito’s majority and rendering the quest for compromise “pretty much hopeless.” Never mind the obvious intent and effect of the leak, pointed out by Alito this past spring: “It was a part of an effort to prevent the Dobbs draft . . . from becoming the decision of the court. And that’s how it was used for . . . six weeks by people on the outside—as part of the campaign to try to intimidate the court.”
A particularly silly tangent from the hosts was the expression of how “endlessly frustrating” it was that Justice Amy Coney Barrett did not write a concurring opinion in Dobbs because they wanted to hear “in her voice . . . what she thinks about all of this. . . . We all . . . just need to understand her, and right now she’s not really helping.” Were they looking for material to target her as part of their ongoing campaign, or was it just incredulity that the justice could disagree with them on Roe?
Toward the end of the segment, Kantor invited listeners to send her more tips. This is a show that is broadly listened to by Supreme Court clerks, so this is an outright invitation for more clerk leaks—i.e., further breaches of their duty of confidentiality, which we could expect to continue in the absence of any accountability for the Dobbs leaker.
Neither Kantor nor the podcast hosts seem any more concerned about this than they are about cruder and more dangerous forms of intimidation at the justices’ homes and churches. Those are all distractions from their overriding goal—to push a false narrative in order to try and undermine public trust in the Court. There is no crisis at the Supreme Court. It’s a manufactured narrative that has been concocted by the Left because they are furious that we have an originalist majority now.