OPINION: This article may contain commentary which reflects the author’s opinion.
Supreme Court Associate Justice Samuel Alito said he has a “pretty good idea” who was responsible for leaking the draft Dobbs ruling ahead of the full court’s reversal of the 1973 Roe v. Wade decision, as well as why it was leaked.
“I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody,” he told The Wall Street Journal in a story published online on Friday.
He also said he is certain of the motive behind the unprecedented leak, which Alito authored, in May 2022: “It was a part of an effort to prevent the Dobbs draft . . . from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside—as part of the campaign to try to intimidate the court.”
The campaign of intimidation included unlawful protests outside the homes of some of the court’s conservatives, which were not prosecuted by President Joe Biden’s Justice Department.
“Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination,” Alito said. “It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.”
He may have been alluding to an assassination attempt against fellow conservative Justice Brett Kavanaugh; an armed man was arrested outside his home on June 8 and has since pleaded not guilty in court.
The leak also led to justices altering their schedules for fear of being attacked. Alito discussed one such incident where he was scheduled to speak to law school students at George Mason University just a few days after the leak.
“Our police conferred with the George Mason Police and the Arlington Police, and they said, ‘It’s not a good idea. He shouldn’t come here. . . . The security problems will be severe.’ So I ended up giving the speech by Zoom,” he told the WSJ. “Still, there were so many protesters, and they were so loud that you could hear them.”
And while he did not say much about how the leak may have affected members of the court at the time, he told the outlet that it “created an atmosphere of suspicion and distrust. We worked through it, and last year we got our work done. This year, I think, we’re trying to get back to normal operations as much as we can. . . . But it was damaging.”
The report noted that Chief Justice John Roberts directed the marshal of the Supreme Court to investigate the leak, and she issued her findings in January: “Investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion.”
Alito told the outlet that the marshal “did a good job with the resources that were available to her” and that he agrees the evidence was not sufficient for a public accusation.
“The investigation has determined that it is unlikely that the Court’s information technology (IT) systems were improperly accessed by a person outside the Court,” the marshal’s report issued in January said. “After examining the Court’s computer devices, networks, printers, and available call and text logs, investigators have found no forensic evidence who disclosed the draft opinion.”
In response to left-wing commentators who claimed that the leak likely came from a conservative justice, Alito told the WSJ: “That’s infuriating to me.”
“Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible,” he said. “I don’t feel physically unsafe because we now have a lot of protection.”
He said he is “driven around in basically a tank, and I’m not really supposed to go anyplace by myself without the tank and my members of the police force.”
Regarding recent attacks on the legitimacy of the court — again, mostly from the Democratic left — Alito told the outlet: “This type of concerted attack on the court and on individual justices [is] new during my lifetime…We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us.
“The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense,” he added.