"Automatic": The justices who overturned Roe didn't care about anything except the outcome

They didn't bother to show their work because they plan to be in power forever

Last year’s Dobbs decision, in which the Supreme Court overturned Roe v. Wade, runs 36,583 words. That’s about 154 minutes worth of reading for the average person.¹ Neil Gorsuch gave it less than ten minutes. About as long as Lynyrd Skynyrd’s “Free Bird.”² Just long enough for a couple verses, a chorus, and a guitar solo -- that’s all the time Gorsuch took to sign off on overturning a half-century of precedent, according to a new report:

Justice Samuel A. Alito Jr. showed his eight colleagues how he intended to uproot the constitutional right to abortion. At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women’s Health Organization. ... Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages.

Now, I’m certainly not surprised Gorsuch had his mind made up about the outcome of Dobbs before he even read Alito’s draft opinion. After all, Donald Trump nominated Gorsuch to the Supreme Court precisely in order to overturn Roe v. Wade -- “automatically”:

October 19, 2016 presidential debate
CHRIS WALLACE: Do you want to see the court overturn Roe v. Wade?

DONALD TRUMP: Well, if we put another two or perhaps three justices on, that’s really what’s going to be—that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.

So Gorsuch’s eagerness to overturn Roe shouldn’t come as a shock. But it’s striking how little Gorsuch apparently cared about ensuring the reasoning behind the decision was solid. How little he cared about the decision’s ability to withstand scrutiny, now and in the future. Signing on to a 98-page opinion in 10 minutes with no edits doesn’t just show Gorsuch made up his mind in advance, it shows he didn’t give a damn about the quality of the explanation he and his fellow justices would offer the world. It shows his contempt for the people he governs and for the very concept of rule of law.

Supreme Court justices have long enjoyed a reputation as serious, rigorous scholars closely scrutinizing facts and case law and precedent; driven not only by a deep sense of responsibility to the governed but by an insatiable appetite for learning, for study, for truth; invested not in outcomes but in fidelity to law and process. It’s a perception carefully tended by the justices themselves, and by those attempting to forestall calls for Court reform. Consider how Gorsuch was celebrated as the ideal Supreme Court justice when Trump nominated him. Here’s Neal Katyal, writing in the New York Times:

I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration. Until Tuesday, when he nominated an extraordinary judge and man, Neil Gorsuch, to be a justice on the Supreme Court. ... if the Senate is to confirm anyone, Judge Gorsuch, who sits on the United States Court of Appeals for the 10th Circuit in Denver, should be at the top of the list. ... I have seen him up close and in action ... he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court. ... one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws? ... I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law.

Not long after, Katyal testified to the Senate Judiciary Committee in support of Gorsuch’s nomination: “This is a first rate intellect, and a fair, and decent, man. ... As a judge, he has displayed a resolute commitment to the rule of law and the independence of the judiciary. Even those who disagree with him concede that the Judge’s decisions are meticulously crafted and grounded in the law and our Constitution.”

Katyal is far from alone in gushing over Gorsuch’s intellect and seriousness of purpose. In 2021, Harvard Law professor and Bloomberg columnist Noah Feldman wrote that Gorsuch “aspires to inherit the mantle of conservative intellectual thought leadership,” adding “Gorsuch’s aspiration to intellectual leadership fairly bursts from his votes and his opinions” and “In every case, no matter how small or large, he takes pains to shape a consistent judicial philosophy.”

This kind of portrayal of Supreme Court justices is key to maintaining a perception of the court as something other than a bunch of partisan hacks. And the justices themselves are eager to play along. During his confirmation hearing, Gorsuch told the Senate Judiciary Committee: “If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came to court would live in fear, never sure exactly what governs them except the judge’s will.” Also: “These days we sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially. If I thought that were true I’d hang up the robe.”

Standing beside Donald Trump at the announcement of his nomination to the Supreme Court in 2017, Gorsuch loftily declared: “A judge who likes every outcome he reaches is very likely a bad judge stretching for results he prefers rather than those the law demands.”

I'll give Gorsuch this much: He sure didn’t stretch in signing onto the Dobbs opinion. At less than ten minutes of consideration, he barely got out of bed. Just five years into a lifetime appointment, facing a case 50 years in the making with the potential to dramatically restrict the rights of half the American people, Neal Gorsuch cared so little about the substance of the ruling he would sign onto that he gave Sam Alito’s 98-page draft a ten-minute skim and called it a day. Abortion bad, 13/10, no notes.

And Gorsuch wasn’t alone: Three more conservative justices quickly signed on to the opinion without a single edit:

After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words. But this time, despite the document’s length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration. The responses looked like a display of conservative force and discipline.

The notable thing about this isn’t just how quickly the justices signed on to overturning Roe; it was all but certain a 6-3 right-wing court would -- as Trump promised -- “automatically” do that, if not via Dobbs than via another case in the near future. The really notable thing to me is that four conservative justices -- enough to give Alito a majority -- didn’t really care how they overturned Roe; didn’t care about the content of the decision, only the outcome. The way Supreme Court decisions are written is extremely important; lower courts look to them for guidance in future cases, and the Supreme Court itself tends to defer to previous Supreme Court decisions.

The conservative justices' behavior in Dobbs suggests a cavalier attitude toward overturning previous precedent (despite the respect for precedent and “settled law” they professed during their confirmation hearings). It also suggests a confidence that the Right will maintain a vice grip on the Supreme Court for decades to come: They didn't bother ensuring the Dobbs opinion was as strong as possible in order to withstand scrutiny from a future Court less ideologically committed to the end of abortion rights. That suggests they either didn't really care about overturning Roe -- which we know isn't the case -- or they assume that they, and their ideological allies, will remain in power indefinitely.

That's not an unrealistic assumption: Republicans have controlled the Supreme Court for more than 50 consecutive years, and a recent study suggests that, without structural reform, they are likely to continue to control it for at least 40 more years. But it does expose the Court’s conservative majority as exactly what Neil Gorsuch warned against: “secret legislators, declaring not what the law is but what they would like it to be,” putting at risk “the very idea of a government by the people and for the people,” and causing the governed “to live in fear, never sure exactly what governs them except the judge’s will.”

1. Assuming 238 words per minute, which … sure, why not?

2. The 9-minute studio version, anyway. Not the live version released a couple years later; that clocks in at a little more than 11 minutes — at least 10 percent more time than Neil Gorsuch devoted to a decision overturning abortion rights.