The Supreme Court has been hit by a new damaging leak over its abortion decisions in a fresh blow to its embattled reputation—and a hint of even more leaks to come.
Intimate details of months of disagreement among the nine justices was reported at length by CNN Monday, just hours after President Joe Biden and Vice President Kamala Harris both back major reforms to the court, with the president accusing justices of being “above the law.” CNN also said its report was the first of a series, suggesting more leaks ahead.
The leak to CNN comes a little more than two years after the court was rocked by the leak of Justice Samuel Alito’s entire opinion overturning Roe v. Wade. Ironically, the court itself accidentally published the opinion on abortion access in Idaho in June this year, a day before it was formally announced.
The justices are likely to be extremely concerned at the level of detail CNN has obtained about their internal divisions over the case Moyle v. United States. It was prompted by Idaho introducing an extreme abortion ban in the wake of the Dobbs decision overturning Roe v. Wade, which would have criminalized doctors performing abortions under any circumstances. That move prompted the federal government to introduce formal guidance that hospitals receiving federal Medicare funding had to offer emergency abortions—which Idaho’s Republican attorney general tried to challenge.
Initially Idaho had the case taken up as an emergency by the Supreme Court and got an emergency stay of the federal Medicare move in January on the court’s so-called “shadow docket.”
CNN revealed Monday that the stay was issued 6-3, splitting along ideological lines, a split which had never been known before and should be a secret.
But that split was then followed by sixth months of fracturing among the conservative justices, the outlet revealed. Among the leaked facts were that after a public hearing on the case in April, the justices’ private vote revealed no clear majority for resolution. Private votes of the justices are considered one of the court’s most closely guarded secrets.
Conservatives John Roberts, the chief justice, and Brett Kavanaugh both “expressed an openness to ending the case without resolving it,” CNN reported.
The leak also reveals that Roberts then abandoned normal protocol and did not assign the writing of the majority decision to any of the justices, leading to months of negotiations.
Instead he, Kavanaugh and conservative Amy Coney Barrett worked on an opinion which would call the case “improvidently granted,” a rare move to essentially admit that the court should never have taken it up.
But CNN reveals that the other conservatives—Samuel Alito, the author of the Dobbs decision, Clarence Thomas and Neil Gorsuch—argued from April until June that Idaho should have its abortion ban upheld. Alito was described as “adamant” that the Biden administration was in the wrong, CNN said.
The report reveals that Roberts, Barrett and Kavanaugh were then offered a compromise in “negotiations” with liberals Elena Kagan and Sonia Sotomayor, which was eventually what prevailed: a ruling not that the court had made a mistake in taking the case, but that Idaho had not shown “irreparable harm” by the Supreme Court setting aside its emergency stay of the federal guidelines. The liberals accepted, leading to the June ruling.
Such a lengthy and extensive leak of internal disagreements and the specifics of procedures and draft opinions are likely to cause extreme concern inside the court and particularly for Roberts. A lengthy probe into the 2022 Roe v. Wade leak— called “appalling” by Roberts—saw U.S. Marshals demand access to clerks’ private texts and emails but did not find a culprit.
The Daily Beast has reached out to the Supreme Court for comment.
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