ARI SHAPIRO, HOST:
The Supreme Court is notoriously secretive, so it's shocking to read the sheer number of disclosures in a New York Times story today about the process leading up to the decision reversing Roe v. Wade. Here are just a few of the revelations. Only 4 of the 9 justices voted to hear the case. Liberal Justice Stephen Breyer nearly voted to dramatically restrict abortion in hopes of avoiding a more sweeping decision that overturned Roe. And conservative Justice Neil Gorsuch spent just ten minutes reviewing a 98-page draft opinion before signing on with no changes. Jodi Kantor reported this piece, along with her colleague Adam Liptak. Welcome back to ALL THINGS CONSIDERED, Jodi.
JODI KANTOR: Thank you, Ari.
SHAPIRO: Let's start with the court's decision to take this case. You reveal there was an unexpected reversal. By whom?
KANTOR: By Justice Amy Coney Barrett, the newest member of the court. She arrived at the court, as you remember, right after Justice Ruth Bader Ginsburg died in the fall of 2020. And almost immediately, she's confronted with this decision. You know, is the court going to take what looks like a potentially important abortion case? And in an early vote in January of 2021, she was a G, a grant, meaning she wanted to go ahead. And then a few months later, she changed her mind and became a deny. And we know a little bit about her early reasoning. We don't know the full explanation. We know that back in January, she was concerned about timing, about being very new on the court and there just having been a change in the composition of the court.
SHAPIRO: But the result is the justices who decided to take this were A, a minority of the court, only 4 of the 9, and B, all men.
KANTOR: So as you know, the Supreme Court has its own particular math. And part of it is that, yes, it only takes four justices to greenlight a case. So in that scenario, every vote is essential. They have the bare minimum. As you said, it was all men. They overrode the concerns of all the women on the court who were from a variety of backgrounds, had a variety of concerns. And part of what's interesting is that it's Justice Kavanaugh who provided the last vote.
SHAPIRO: Let's jump ahead to after the justices have heard oral arguments, as the court is deciding how to rule. You reveal that Chief Justice John Roberts was talking with Justice Stephen Breyer - a conservative and a liberal - about a potential compromise. What would that have looked like?
KANTOR: So we know from the chief's public statements that what he favored was a 15-week compromise. That's what the Mississippi law was trying to do, to limit abortions to 15 weeks. And that rule is pretty accepted around the world, right? It - you know, lots of democracies limit abortion to about that time period. So basically, the chief justice wanted to say yes to Mississippi's 15-week law, but he wanted to say no to overturning all of Roe, meaning if you want to have an abortion before 15 weeks, OK.
SHAPIRO: Months before the decision was issued, there was a shocking leak. Politico published Justice Samuel Alito's draft opinion overturning Roe v. Wade. How did that undercut the attempt to reach a compromise that Chief Justice John Roberts had been working on with Justice Stephen Breyer?
KANTOR: It's such an important question because listen. We don't know who leaked this. We don't know the exact motive of the person who did it. But we can now say it's a fact, which is the leak rendered those compromise efforts hopeless. There was - I mean...
SHAPIRO: It locked people into positions that might otherwise have been tentative.
KANTOR: Exactly - because the reason why these votes are secret until they're announced are because justices do sometimes change their positions. But once this opinion was out there, it became very difficult to do so.
SHAPIRO: You know, the court investigated the source of the leaked opinion, and we still don't know where it came from. But in your article today, you write that you viewed documents and notes and conducted interviews with more than a dozen people from the court, which I find almost as shocking as the revelations themselves. It suggests the Supreme Court does not have just one leaker. The place is a sieve.
KANTOR: I think the best way to answer your question, Ari, is to see that my job as an investigative reporter is to build people's confidence in telling the truth and to find safe pathways for them to share information that's in the public interest. And a lot of investigative journalism is about taking stories that people think or assume are untellable and finding ways to bring them into public view.
SHAPIRO: And yet, it's hard for me to imagine that somebody trying to tell this story would have gotten people at the court to speak in this candid way even a few years ago. To me, it feels, reading this story, like it is evidence of how much the tenor and culture and trust at the court has dramatically changed.
KANTOR: Maybe. Maybe not. There's a long tradition of great books and articles about the Supreme Court and especially, you know, after a really big case is decided of trying to understand, you know, how it happened because this institution has so much power. It's just mind-boggling to think that these nine people have so much authority over the rest of us.
SHAPIRO: I want to end by looking ahead because this week the Supreme Court announced that it will decide a case on access to a commonly used abortion pill, mifepristone. And this is the first major abortion-related case that they've taken since overturning Roe. So what do you think the findings of your investigation and the fact that this investigation is now out there suggest about how this next case might be decided?
KANTOR: Well, I think the headline there is that, in his opinion in Dobbs, Justice Alito said that the court was washing its hands of abortion decisions, that it was stepping away from the debate. And we see that that is just not so. These abortion pills are now the most common method for terminating pregnancies. And so not long after Dobbs, we see once again that these questions of life and choice are back in the justices' hands.
SHAPIRO: That's Jodi Kantor. Her story with Adam Liptak for The New York Times is headlined "Behind The Scenes At The Dismantling Of Roe v. Wade." Thank you so much.
KANTOR: Thank you. Transcript provided by NPR, Copyright NPR.
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