The KBJ Delay in Callais

One of the most explosive claims from Molly Hemmingway’s new books concerns Dobbs. As we all recall, after the leak of the Dobbs draft on May 2, 2022, it became apparent that the Justices would face serious security threats. Indeed, a deranged liberal traveled from California to D.C. with weapons and made it to the threshold of Justice Kavanaugh’s home. (Sounds familiar, doesn’t it?) Yet, after all this happened, the Dobbs opinion was not released early. The Court held onto it until June 24. There was no obvious effort to expedite the release of the opinion. And all told, there were few changes made between the leaked draft and the final published opinion. At the time, some speculated that there might be changes to the opinion. Or perhaps the majority flipped. Yet, the five held strong. What then was the holdup?

Hemmingway reports that Justices Sotomayor, Kagan, and Breyer refused to expedite the release of the opinion. (This vignette comes after the leak but before the assassination attempt):

On Thursday, May 12, the justices gathered in conference to go through the circulating opinions and set the dates for their release. Justices grade the decisions based on when they will be ready for release. An “A” is for those decisions and dissents that are done, “B” for those that are almost done, and “C” for those not near completion. Dobbs was graded a “C.”

The majority opinion had been done for more than three months and was waiting only for the dissents. Alito asked the dissenters to make the completion of their dissents their priority because delay of the decision was a security threat. Abortion supporters had an incentive to kill one or more of the justices in the majority to change the outcome. The dissenters demurred. Gorsuch spoke up, asking for a date by which they might be done. They would not give a date.

Following the conference, Justice Elena Kagan visited Justice Stephen Breyer’s office. Though he had not said he would accommodate the justices whose lives were at risk by getting out a dissent, he was the member of the liberal bloc most willing to do so. Fiercely liberal in his jurisprudence and in strong disagreement with the majority decision, he nevertheless was a gentleman and a friend to all on the Court. Kagan remonstrated with Breyer not to accommodate the majority, screaming so loudly, observers noted, that the “wall was shaking.”

I’m not quite sure how stone walls were shaking, but I get the picture.

After the assassination attempt, the Justices reached something of a compromise:

The dissenting justices eventually agreed to complete their Dobbs dissent by June 1 in return for an extension to June 15 of the deadline for their majority opinions in other cases. When the dissent was finally submitted, however, it cited the decision in the high-profile Second Amendment case New York State Rifle & Pistol Association v. Bruen, which would not be released until the end of the term. The release of the Dobbs decision, therefore, was dragged out until June 24, the day after Bruen was released.

Did Dobbs have to cite Bruen? Was this just another attempt at delay? This is the sort of claim that one day will be revealed in the papers of the Justices. I hope to live long enough to see them.

For now, it seems that Justice Alito may have addressed this situation, perhaps indirectly.

Justice Alito included an unusual footnote in his Callais concurrence:

The dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional.*

*That constitutional question was argued and conferenced nearly seven months ago.

Why would Justice Alito write this? What difference does it make that Callais was argued in October and conferenced shortly thereafter? The implication, I think, is that the Callais dissent was slow-walked. But why would it be slow-walked? As all know, the longer the opinion would take to publish, the harder it would be for Republicans to implement the order for the 2026 midterms. I’m sure Alito’s majority opinion was prepared quickly. And as I noted last week, the majority barely responds to Justice Kagan’s dissent, so there was not much back-and-forth. The delay, Alito insinuates, was from the Court’s liberals. And why would they delay? Perhaps Justice Kagan needed seven months to perfect three consecutive sentences that begin with the words “I dissent because.” Or, there was an effort to help Democrats. Who was sacrificing principle for power?

On X, Mike Fragoso asks, “Did Mollie’s book excerpt force Kagan’s hand in Callais? I guess we’ll never know.” The Wall Street Journal likewise observes, “The footnote suggests some pique by Justice Alito about the Court’s long gestation on Callais, and understandably so since Justice Jackson is accusing the majority of playing politics.”

Of course, if Justice Jackson went along with these dilatory tactics, she has some chutzpah for complaining about the effort to issue the mandate forthwith. But for the KBJ delay in Callais, Louisiana could have received the judgment before the election began, an this entire dispute would amount to nothing.