Justice Alito ‘hatched secret plot to get other conservatives onboard’

Justice Alito hatched a secret plot to galvanize the Supreme Court‘s conservative justices to vote down the constitutional right to an abortion, a new report suggests.

The Supreme Court last year voted to overturn the landmark 1973 Roe V Wade ruling that made abortion care legal and state abortion bans unconstitutional.

On June 24 2022 that right was overturned when a majority voted in the Mississippi case of Dobbs v Jackson Women’s Health Organization to state that there was not constitutional protection for abortion.

Within hours of the announcement, abortion clinics in some states were forced to close.

Since the court’s ruling 21 states have banned or restricted access to abortion. 

The 98 page draft option by Justice Alito in the case was signed off by Justice Neil Gorsuch, Justice Clarence Thomas, Justice Amy Coney Barrett and Justice Brett Kavanaugh with no revisions. 

The draft was leaked causing widespread protests against the country but became law months later.

However, Justice Barrett, selected by Donald Trump to replace Ruth Bader Ginsburg to deliver a conservative supermajority and pass the vote, didn’t even want to hear the case, The New York Times has reported. 

When the jurists were debating Mississippi’s request to hear it, she first voted in favor but later switched to a no, sources told the Times.

The driving forced behind the other justice’s voting to hear the longshot case in May 2021 was Justice Alito, who had worked to craft legal strategy against abortion rights since his time as a Regan administration lawyer, according to sources and internal documents seen by the Times.

Sensing the opportunity to uproot access to abortion in America, according to the Times, Alito encouraged the other male conservatives on the bench to vote to hear the case.

Alito also circulated a draft preview opinion in February 2022 to his fellow conservatives before the rest of the bench, in an effort to cement the conservative coalition out of the sight of his liberal colleagues, and thus pregame the result, according to the report. 

The court delayed announcing that it would hear the case so as not to appear to be capitalizing on the death of Bader Ginsburg, the court’s foremost defender of abortion rights. 

After Ginsburg’s death, likely to be under President Trump’s administration, it was understood the Republican president would seize the opportunity to install a conservative justice and fulfil the conservative right’s fifty-year campaign to end abortion rights. 

Whilst Justice Barrett was getting settled and allowing for an appropriate period of time after Justice Bader Ginsburg’s death Alito was helping to reschedule the Mississippi case again and again to keep it available for judgement, the Times reported.  

Alito was also instrumental in allowing Mississippi to perform a ‘bait and switch’ which turned the case from a more narrow attempt to restrict abortion in the state while Ginsburg was alive, to a full assault on the constitutional ruling of Roe after her death. 

The court ‘barreled over each of its normal procedural guardrails,’ Richard M. Re, a University of Virginia law professor and former Kavanaugh clerk on a federal appellate court wrote. 

‘The court compromised its own deliberative process’ in stepping away from the abortion debate and intending to ‘return that authority to the people and their elected representatives’ he added. 

Chief Justice John Roberts Jr, a conservative, along with the liberal Justice Stephen G. Breyer, worked to prevent or at least limit the outcome.

Justice Breyer even considered trying to save Roe v. Wade by significantly eroding it, according to the Times. 

The leak of Justice Alito’s draft leak to Politico helped to lock in the result as it undercut Chief Justice Roberts and Justice Breyer’s attempts at compromise, the paper states.

Pending votes were secret in part to allow justices to change their minds, and making the draft public had effectively cemented the votes. 

In his draft, Justice Alito wrote that Roe and Casey were legally unsound, that abortion rights had only a limited history in the United States and that abortion destroyed what the Mississippi law called the life of an ‘unborn human being.’

‘Roe was egregiously wrong from the start,’ he wrote.

Adding: ‘It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.’ 

Following the leak Alito worked hard to maintain the five votes in favor of overturning Roe, knowing that it would stall the conservative movement against abortion if one vote was lost.

This became pressingly clear when Justice Thomas was hospitalized with an infection for a weak, driving home fears that the conservative supermajority would not last forever. 

Furthermore, Chief Justice Roberts continued trying to crack the coalition, advocating compromise in a last-ditch effort to save Roe.

Liberal Justice Breyer even considered joining the chief and Kavanaugh in a compromise that would restrict abortion after 15 weeks while maintaining the constitutional protection, limiting Roe in order to save it, according to the Times. 

Since Roe was overturned, laws limiting abortion have increasingly been seen as an albatross around Republican lawmakers’ necks. 

The GOP have lost an abortion rights initiative election in Ohio, a governor’s race in Kentucky and state legislative contest in Virginia where abortion right have played a central role.

Since the overturn of Roe abortion rights advocates have won seven state ballot initiatives to make access to abortion a state right.

These include in the swing state of Michigan and the red states of Ohio, Montana, Kansas and Kentucky.

In Ohio 57 percent of voters approved the single issue ballot effectively override a GOP-passed ban on abortion after six weeks of pregnancy.

In Kentucky Democratic Governor Andy Beshear won re-election largely by focusing his campaign on attacking his Republican rival’s support for the state’s no-exemption abortion ban.