Chief Justice John Roberts privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end, but May's unprecedented leak of a draft opinion reversing Roe v. Wade made the effort all but impossible, multiple sources familiar with negotiations told CNN.
It appears unlikely that Roberts' best prospect -- Justice Brett Kavanaugh -- was ever close to switching his earlier vote, despite Roberts' attempts that continued through the final weeks of the session.
New details obtained by CNN provide insight into the high-stakes internal abortion-rights drama that intensified in late April when justices first learned the draft opinion would soon be published. Serious conflicts over the fate of the 1973 Roe were then accompanied by tensions over an investigation into the source of the leak that included obtaining cell phone data from law clerks and some permanent court employees.
In the past, Roberts himself has switched his vote, or persuaded others to do so, toward middle-ground, institutionalist outcomes, such as saving the Affordable Care Act. It's a pattern that has generated suspicion among some right-wing justices and conservatives outside the court.
Multiple sources told CNN that Roberts' overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the chief could change the outcome in the most closely watched case in decades. Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decision, lest anything suddenly threaten their majority.
Roberts' persuasive efforts, difficult even from the start, were thwarted by the sudden public nature of the state of play. He can usually work in private, seeking and offering concessions, without anyone beyond the court knowing how he or other individual justices have voted or what they may be writing.
Kavanaugh had indicated during December oral arguments that he wanted to overturn Roe and CNN learned that he voted that way in a private justices' conference session soon afterward. But the 2018 appointee of former President Donald Trump who had been confirmed by the Senate only after expressing respect for Roe has wavered in the past and been open to Roberts' persuasion.
The two men have known each other since the early 1990s when they both worked in the George H.W. Bush administration. Roberts, who is 67 and 10 years older than Kavanaugh, was a deputy US solicitor general at the time, and Kavanaugh, a new attorney.
They share similar Roman Catholic roots, prep school backgrounds and Ivy League educations (Roberts, Harvard; Kavanaugh, Yale). They now live so close to each other in Maryland that abortion rights protesters sometimes go to both homes on the same evening.
Conservatives anticipated Roberts' actions
The high court's June 24 ruling in Dobbs v. Jackson Women's Health Organization struck America like a thunderbolt, despite the leaked preview on May 2. The decision has caused confusion among women and health care providers and spurred action in state legislatures -- some trying to impose more restrictions on pregnant women, some trying to safeguard reproductive rights.
It has unsettled the court in its own way, as the 5-4 ruling represented a startling departure from a half century of precedent.
The final decision flouted the court's traditional adherence to judicial restraint and precedent. Polls show public approval of the court falling significantly, as the decision has been regarded as a product of politics rather than neutral decision-making.
Roberts' efforts directed toward Kavanaugh and to a lesser extent newest conservative Justice Amy Coney Barrett were anticipated. Some anti-abortion advocates and conservative movement figures had feared that Roberts would sway either Kavanaugh or Barrett from the draft opinion written by Justice Samuel Alito that was an all-out rejection of Roe and women's privacy rights.
The Wall Street Journal editorial page, which has previously obtained inside information about conservative votes, had published an editorial on April 26 warning that Roberts, presumed to be working to save part of Roe, "may be trying to turn another Justice now."
Roberts indeed was trying, according to CNN's sources who also revealed that by the end of that April week the justices discovered that the news organization Politico had obtained Alito's first draft of the Dobbs ruling from February.
Roberts and his colleagues spent a few anxious days quietly awaiting publication of the document, stretching through the afternoon of May 2, when all nine were together for a live-streamed memorial at the court for the late Justice John Paul Stevens. Politico first published its story about the draft that night at 8:32 p.m.
Roberts launched an investigation into who might be behind "this betrayal of the confidences of the Court." He vowed that court's work "will not be affected in any way."
But, of course, it was, most notably in diminishing whatever chance he had to dislodge the five-justice bloc set to overturn Roe. The aggressive leak investigation worsened the existing strains among the justices, their law clerks and other employees in the nine chambers.
As CNN earlier reported, the court's marshal, Gail Curley, asked law clerks who serve the justices for one-year terms to sign affidavits related to the leak and to turn over cell phone data. She also obtained electronic devices, CNN recently learned, from some permanent employees who work closely with the justices.
Friction among all intensified as protests began, fencing and barricades were erected around the court, and some usual end-of-session lunches and parties were dropped.
Aggravating everything and presenting the greatest consequence for all Americans was the emerging force of the court's right-wing supermajority, which, aside from abortion rights, included Roberts.
The 6-3 court ruled boldly to enhance gun rights, favor religious conservatives, and diminish regulatory authority over the environment.
Roberts helped steer several of those rulings. For the court's remaining three liberals, who held out some hope that the chief justice could moderate fellow conservatives on abortion rights, it was defeat all around.
