It’s a Close Race for Biggest Asshole on the Supreme Court

On Friday, the New York Times published an investigation on how, exactly, the Supreme Court used a Mississippi law to overturn Roe v. Wade. While Justice Samuel Alito is an absolute villain in the piece, he still faces some steep competition for the title of biggest asshole on the court.

But, some backstory first, in case you blocked this stuff out: Mississippi appealed a case involving its 15-week abortion ban to the court in June 2020. Justice Ruth Bader Ginsburg died in September of that year and Amy Coney Barrett was confirmed in late October. The justices announced that they took up the case, named Dobbs for short, in May 2021, then they heard arguments that December, and overturned Roe in June 2022. A month before the ruling, a draft opinion written by Alito got leaked to Politico.

Got it? Now, here’s a rundown of who did what on the path to overturning the nearly 50-year precedent of bodily autonomy.

Samuel Alito

After Barrett joined the court, Alito rescheduled the justices’ meeting on whether to take the case several times, reportedly to give her time to settle in. But then on January 8, 2021—yes, two days after the Capitol insurrection—they held a vote. It was 5-4 to hear the case. Alito wanted to hear it that spring, during Barrett’s first term on the court, as did Justices Neil Gorsuch and Clarence Thomas. Alito was overruled on the timing (more on that below) and they heard the case in December 2021.

Alito was now worried that the additional time meant some justices would defect to a more moderate position that would have still gutted Roe but wouldn’t fully overturn it—similar to what happened 30 years before in Planned Parenthood v. Casey. (Brush up on that case here.) In the spring of 2022, Alito knew justices John Roberts and Stephen Breyer were trying to get Brett Kavanaugh to vote for a separate opinion that Roberts was writing. The Wall Street Journal also somehow knew, and the editorial board urged the GOP justices to stand firm. Then in May 2022, Politico published Alito’s draft and reported that every conservative justice, minus Roberts, had voted to overturn Roe. The Times can’t say for sure that Alito leaked the draft, but the effect of the leak was that no one changed their vote afterward, and Alito has shown he has a close relationship with the WSJ opinion section.

Brett Kavanaugh

You’d think that a man credibly accused of sexual assault, who also allegedly lied under oath multiple times, wouldn’t keep lying, and yet! The Times reports that Kavanaugh concocted a plan to lie to the public about when, exactly, they took the Dobbs case in order to insulate Barrett, and the institution more broadly, from criticism after RBG’s death. They voted yes in January 2021 but didn’t say so until May 2021. Here’s how the Times put it:

But at a subsequent meeting, he made an unorthodox suggestion: The court could withhold the public announcement of its decision to take the case. The justices could re-list Dobbs again and again on the public docket, then announce the decision to move forward in the spring.

That would push it to the next term, avoiding a rushed briefing and argument schedule, and allow them to watch other abortion cases winding through lower courts, according to two people aware of the discussion. His plan would also suggest the court was still debating whether to go forward, even though a vote had been taken — and create the appearance of distance from Justice Ginsburg’s death.

This is a lot of words to describe an elaborate lie that the whole court was in on!

Amy Coney Barrett

Barrett initially voted in January 2021 to hear the Dobbs case, though she didn’t want it to be that term—she reportedly told Alito that this was not the time. Despite Kavanaugh working to delay the case, Barrett apparently still didn’t feel comfortable hearing it and retracted her vote. This vote switch happened sometime between January and May, and the Times couldn’t find out why. (Dobbs had four votes to take the case, from Justices Alito, Gorsuch, Kavanaugh, and Thomas.) But no matter, when it was time to rule in the case shortly after arguments, she voted with Alito to overturn Roe. And she didn’t even have the guts to write a concurring opinion to say a damn word for herself about why.

Neil Gorsuch

Gorsuch is barely mentioned in the piece but when he comes up, it’s absolutely brutal. The lede of the story describes how, after Alito emailed a 98-page draft to his colleagues in February 2022, Gorsuch took all of 10 minutes to respond that, yes, he would join the opinion with zero changes. The Times suggests that Alito circulated his draft to just the conservatives first to get their buy-in on the high-profile case, but Gorsuch didn’t even feel the need to act like this was the first time he’d read it.

There’s another galling Gorsuch anecdote in the piece about the emergency appeal of the bounty-hunter abortion ban in Texas. The law that banned abortions after six weeks was set to take effect at midnight on September 1, 2021, two months before arguments in Dobbs. On August 31, Alito emailed his colleagues to explain why he thought they shouldn’t block the law. (Alito oversees emergency appeals from the Fifth Circuit, which includes Texas.) Barrett, Kavanaugh, and Thomas agreed, while Roberts and the three liberals wanted to block it. Alito said Gorsuch would not be responding that night, so the vote was deadlocked at 4-4. The law took effect and Gorsuch voted the next day not to intervene. The man knew the case was coming because abortion providers made the emergency appeal and he just….said nothing.

I know what you’re thinking, what about Justice Clarence Thomas? Thomas isn’t a major player in the Times piece, aside from dutifully voting to take the case and overturn Roe. But, don’t worry, there’s a new ProPublica story out today showing that Thomas basically threatened to quit the court in 2000 unless Congress raised the Justices’ salaries. (Thomas and his wife had recently started raising his grandnephew as their own son.) The pay raise didn’t happen, but he got a bunch of rich people to start buying him things in the ensuing years!

Both stories make a great case for expanding the court and implementing term limits. Until then, we have at least a lifetime to determine who really is the biggest asshole of them all. Stay tuned!