The conservative chambers continue to leak like a sieve to “sources close to them,” producing more interesting gossip about the world’s most powerful school cafeteria. (I’m beginning to think that the reactionary freakout over the leaked draft that also seems more likely than ever to have also come from the neoconfederate side was in bad faith!) One pertinent piece of information is that the Alito Pajamas Media blog is the only draft currently circulating:
Justice Samuel Alito’s sweeping and blunt draft majority opinion from February overturning Roe remains the court’s only circulated draft in the pending Mississippi abortion case, POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes. No dissenting draft opinions have circulated from any justice, including the three liberals.
The conservative chambers are also upset that they cannot strip rights from people and unleash a regime of surveillance and terror in which every woman who miscarries is potentially a criminal suspect without people making them feel uncomfortable:
“This is the most serious assault on the court, perhaps from within, that the Supreme Court’s ever experienced,” said one person close to the court’s conservatives, who spoke anonymously because of the sensitive nature of the court deliberations. “It’s an understatement to say they are heavily, heavily burdened by this.”
The world’s smallest saxophone is now playing “Yakety Sax.”
Meanwhile, there’s essentially no chance that Roberts is going to be able to get votes for his “overrule Roe sub silentio while maybe keeping a few weeks open kinda” position, in part because he’s no longer sitting at the cool kid’s table:
However, in a series of politically-charged cases, Roberts sided with the court’s liberals to uphold the Affordable Care Act’s individual mandate, reject then-President Donald Trump’s repeal of protections for so-called Dreamers, and foil Trump administration plans to add a question about citizenship to the 2020 census.
Of those rulings, the Obamacare one ruffled the most feathers because Roberts reportedly reversed his position days before the decision was announced, ultimately voting to find the law constitutional.
“There is a price to be paid for what he did. Everybody remembers it,” said an attorney close to several conservative justices, who was granted anonymity due to the sensitive nature of the court’s arguments.
The thing about galaxy-brained strategery is that it can work only when people need your vote instrumentally. When they don’t, it becomes actively counterproductive. (Like Paul, I don’t think it’s a coincidence that Breyer finally packed it in right after Alito unleashed his draft.) In this particular case, I doubt that the other Republican justices being pissed off at Roberts for being insufficiently MAGA and excited about taking away people’s health insurance mattered in the end; the Alito Five are overruling Roe because that’s what they want to do, and because Kennedy retired strategically and RBG didn’t they have no reason to give a shit what Roberts would prefer for his legacy.
This is now a Court where if Roberts wants to assign opinions it will be on the terms set by the other Republicans, and barring an unforeseen personnel change before fall 2022 it’s going to be like this or worse for a loooong time.