At the Jan. 8 conference, the three liberals — Justices Breyer, Elena Kagan and Sonia Sotomayor — and the chief justice opposed hearing the case. The five other conservatives voted in favor, according to a written tally and several people familiar with the discussions. They couldn’t avoid a case like this, Justice Kavanaugh told the group.
Dobbs had more than cleared the bar to proceed. But at a subsequent meeting, he made an unorthodox suggestion: The court could withhold the public announcement of its decision to take the case. The justices could re-list Dobbs again and again on the public docket, then announce the decision to move forward in the spring.
That would push it to the next term, avoiding a rushed briefing and argument schedule, and allow them to watch other abortion cases winding through lower courts, according to two people aware of the discussion. His plan would also suggest the court was still debating whether to go forward, even though a vote had been taken — and create the appearance of distance from Justice Ginsburg’s death.
Justices Alito, Gorsuch and Thomas disagreed, wanting to move sooner and hear the case that term. Some justices questioned whether Justice Kavanaugh’s proposal was appropriate: The case had been on the docket since September.
But Justice Barrett, the newest member of the court, made a strong stand. She was the lone woman in the conservative bloc, with seven children and personal views on abortion that were no secret. Of the nine people in black robes, she was the sole mother.
This was not the time, she told Justice Alito, according to two people aware of the comment. She had arrived not even three months before. If the others intended to hear the case that term, she said, she would change her vote to oppose taking it.
The chief also expressed concern, saying the court could look as if it had been waiting for a new justice to take on a challenge to Roe. Justice Alito, worried that a delay could affect the outcome, asked Justice Kavanaugh if his vote was solid, to which the younger man said yes.
The Kavanaugh plan prevailed, and as the winter of 2021 turned to spring, the docket showed the case being re-listed week after week. Anxiety mounted among conservatives outside the court. Seizing the moment was vital, they were saying. Justices Alito and Thomas were in their 70s, and the new conservative supermajority would not last forever.
“If the court somehow ends up failing to grant certiorari in Dobbs, there will justifiably be staggering disappointment with any conservative justices who failed to provide the needed votes,” Ed Whelan, a legal commentator and former Scalia clerk, wrote in April of 2021, ten months after the petition was filed.
In the conservative legal movement, which felt burned by defections by Republican appointees, Justice Kavanaugh was seen as a flight risk. His jurisprudence on abortion law was marked by attempts to patch together compromises and push off difficult decisions. As his name had surfaced on a shortlist for the court, supporters of potential rivals attacked him in an anonymous memo claiming he showed a pattern of “abandoning conservative principles.”
Still, the right closed ranks around him after his nomination, especially after he was accused of long-ago sexual misconduct, which he vehemently denied.