How do you think the leak of the draft opinion affected what transpired?
That leak showed everyone where five justices were, and especially Justice Brett Kavanaugh and Justice Amy Coney Barrett — the newest members of the court — where they had already planted their votes. Their sentiment became so obviously public. We had suspected from oral arguments that they would want to reverse Roe, but they weren’t publicly locked in. But once the leak occurred, they likely became less receptive to internal negotiations. The chief justice likes to work behind the scenes, offering concessions and winning concessions from colleagues. So the public nature of that leak affected those negotiations, and once that leak was out there, I think it locked everyone in.
Do you expect a ruling on marriage equality?
I think everything is now on the table. Whether the 2015 Obergefell ruling could ever be reversed at this point might seem out of the realm of possibility, just because so many families, so many individuals, have relied on that ruling. But now, after what we just saw in June, it’s hard to say “never” to anything. Clarence Thomas and Samuel Alito really feel like the clock is ticking on them. They are both feeling the urgency of their time on the bench. I do not think that same-sex marriage is going to evaporate. But I’ll tell you what could happen and what is likely to happen: It will be harder for same-sex couples to bring claims of discrimination against people who provide services — for weddings, for example.
What about expanding the court or imposing term limits?
I don’t think term limits are going to become a reality because the political will simply isn’t there. It would have to start with members of Congress wanting to put that question out there. Under the Constitution, justices and judges are appointed for life, so arguably the Constitution would have to be amended. And that seems like a very tall order. The majority in Congress has not moved in that direction, and President Biden has expressed reluctance for it, too. So as far as term limits and expansion of the number of seats on the bench go, I don’t see any changes.
Let’s talk about women on the court.
I wrote my first biography about the first woman, Justice O’Connor, who was appointed in 1981, and then I spent so much time with the second woman, Ruth Bader Ginsburg, who came on in 1993. But consider how different each of them was from each other: one is a Republican from Arizona, the other a Democrat from Brooklyn. They had different views of the law. Amy Coney Barrett and Ketanji Brown Jackson are distinctive in their own ways and different from our first Hispanic justice, Sonia Sotomayor. Justice Barrett is the first strong right-wing woman justice. She became the first woman justice to ever vote to overturn abortion rights. Justice O’Connor, who was a Republican appointee of Ronald Reagan, ended up being one of the key votes who saved Roe v. Wade in 1992. And then you have Justice Elena Kagan, whose dealmaking style is very different from her colleagues. She is one of the justices who I pay special attention to because, like John Roberts, she is always trying to affect cases behind the scenes.
How do you see the court changing over the next few years?
The court that we’re seeing now is the court of our future. The three Trump appointees — Barrett, Kavanaugh and Neil Gorsuch — are among the youngest. They’re all in their 50s. So those three are going to be the anchor of this court for a very long time, and obviously those three have only seemed more emboldened by their place on the right wing. Justice Jackson, President Biden’s appointee, is also in her 50s. On occasion, Justice Gorsuch or Justice Kavanaugh might inch a little bit over toward the liberal side. But what we’ve seen in this most recently completed term is that they are solidly part of this new conservative supermajority. This is likely to be the court for decades.
What’s one thing you hope the audience gets from your reporting?
I’m trying to bring to our viewers the drama of what can be a dry legal world, especially through character-driven accounts of what goes on behind the scenes and what the justices don’t want you to know. I’m reminded of something that a court official once told me: “If we had wanted you to know that, we would have told you.” I thought: “Well, that’s not how it works. If I want to know it, I’m going to find it out.”
📚 A Supreme Court reading list from Joan Biskupic:
- 20 years of closed-door conversations with Ruth Bader Ginsburg
- Behind the scenes at the secretive Supreme Court
- Late nights, courtesy votes and the unwritten 6-vote rule
- Conservative justices seized the moment and delivered
- The force of the Supreme Court’s right turn shakes the country
