When it comes to abortion, it’s the Alito – and Leo – Supreme Court now

By Joan McCarter | 15 December 2023
Daily Kos

Supreme Court Justice Samuel Alito. (Credit: YouTube / screengrab)

According to new reporting from The New York Times’ Jodi Kantor and Adam Liptak, the precedent-shattering abortion decision handed down by the Supreme Court in June 2022 was the result of the heavy-handed machinations of one extremist on the court: Justice Samuel Alito, who authored the Dobbs v. Jackson Women’s Health ruling. The deep dive into the modern court’s sharp departure from the norms and procedures on the issue of abortion shows the extent to which the far right—and Leonard Leo’s dark-money empire—have captured this institution that has literal life-and-death power over Americans.

Using a variety of anonymous sources, notes, and documents, Kantor and Liptak show how Leo corralled the conservatives and shut Chief Justice John Roberts out of the process. Within 10 minutes of Alito sharing his initial 98-page draft of the decision on Feb. 10, 2022, Justice Neil Gorsuch had signed on. The next day, Justices Clarence Thomas and Amy Coney Barrett added their names. Within days, so had Justice Brett Kavanaugh. None had revisions or alterations, as would be the normal process in crafting a decision. They rubber-stamped Alito.

“Justice Alito appeared to have pregamed it among some of the conservative justices, out of view from other colleagues, to safeguard a coalition more fragile than it looked,” Kantor and Liptak write. They go on to explain how Alito engineered the whole process, from when the state of Mississippi first filed a less extreme challenge to abortion rights to keeping the case at bay until Justice Ruth Bader Ginsburg died and was replaced by a Donald Trump nominee. Even then, he didn’t move right away:

Suddenly the Mississippi law had fresh prospects. But instead of discussing whether to take the case, the court rescheduled the matter again and again, for an unusual nine times, through the end of the year. For at least some of that period, Justice Alito was doing the rescheduling, according to two people who observed the process. To some at the court, he appeared to be waiting for his new colleague (Amy Coney Barrett) to get settled.

Once she had settled in, it was a done deal. Roberts was left in the dust after months of effort to rein the conservatives into a less sweeping overthrow of federal abortion rights. With that, Alito and Thomas were effectively announcing that the court was now theirs.

Not just theirs, however, because there’s the man in the background who handed Alito those three Trump justices: Leonard Leo. His fingerprints are all over the Dobbs decision, with whole passages lifted from the amicus briefs filed by individuals and groups in Leo’s dark-money network. In fact, it could be argued that it’s not a Trump majority court, but a Leo majority court.

The backlash to the Dobbs decision, however, has resulted in much more interest in the court from the traditional media and from the public, resulting in important journalistic efforts like this one from the Times exploring the political forces at work in our country’s highest court. In the case of Alito and Thomas in particular, it’s the appearance of influence-peddling and corruption that has resulted in investigations by the Senate Judiciary Committee.

Roberts and the other justices are now saddled with the perception that the court is controlled by Alito and Thomas. It’s possibly why Roberts and the court’s liberals have been having more success in picking one or two of the other conservatives to moderate many of the court’s decisions post-Dobbs. For example, just this week the court let the state of Illinois’ semi-automatic weapons ban stand, turning away a challenge to the law.

That doesn’t much help the nation’s women, however. Here’s the heartbreaking coda to the Times’ report: what happened to the Jackson Women’s Health clinic and the women of Mississippi.

On July 6, the clinic performed its final abortion. The pink building was painted white and turned into a home décor store. But the phone lines stayed open. For months afterward, women who had not gotten the news about the justices’ decision in Washington were still calling.

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