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Tipsheet

Almost a Year After Dobbs Leak, Justice Alito Shares His Thoughts

Erin Schaff/The New York Times via AP, Pool

This piece has been updated to include a statement from Curt Levey, a constitutional law attorney and the president of the Committee for Justice. 

On May 2, 2022, someone leaked the draft opinion of the Dobbs v. Jackson decision which indicated the U.S. Supreme Court was going to overturn Roe v. Wade. While the official opinion, authored by Justice Samuel Alito, wasn't handed down until June 24, 2022, plenty of hysterical backlash against conservative justices took place before then. Now, almost a year later, Justice Alito has shared his thoughts with reporters from the Wall Street Journal, in a piece aptly titled "Justice Samuel Alito: ‘This Made Us Targets of Assassination.’"

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This isn't mere hyperbole. Someone wanted to assassinate Justice Brett Kavanaugh. It was also later revealed that Nicholas Roske, who pled not guilty to federal charges, wanted to potentially target two other conservative justices.

"Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination," Alito shared "It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us."

Alito also denounced the idea that it was a conservative who leaked the draft. "That’s infuriating to me," he said about that theory. "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," Alito stressed.

Professor Jonathan Turley named NPR's Nina Totenberg as one of those who offered it was a conservative who leaked the draft. This is the same Totenberg who tried to stir up debunked controversy on masks between Justices Neil Gorsuch and Sonia Sotomayor. 

Alito thinks he knows who did leak it. While he agrees there wasn't sufficient evidence to make a public accusation, as was the case back in January, Alito shared "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 also believes someone leaked the draft as "a part of an effort to prevent the Dobbs draft... from becoming the decision of the court," adding "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."

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There's another reason as to why the theory the leaker is a conservative is so ridiculous. 

"Of course, if the likely leaker were a conservative, their name would almost surely have been reported by the media by now. Alito tells us he is nonetheless certain the leak was intended to prevent the Dobbs draft from being issued," Curt Levey a constitutional law attorney and the president of the Committee for Justice, pointed out to Townhall. "Common sense tells us he is right. After all, only someone on the Left would have had the requisite anger about the Dobbs decision to do something so damaging to the Court. Justice Alito is right to be infuriated at progressives who claim the leak came from a conservative--all the more so in light of his observation that the leaker knew they might be able to stop the Dobbs decision by motivating someone to kill one of the five justices in the majority."

While Alito is in safer hands now, that doesn't mean he didn't suffer before:

[Alito] adds that “I don’t feel physically unsafe, because we now have a lot of protection.” 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.” Deputy U.S. marshals guard the justices’ homes 24/7. (The U.S. Marshals Service, a bureau of the Justice Department, is distinct from the marshal of the court, who reports to the justices and oversees the Supreme Court Police.)

A federal law called Section 1507 makes it a crime to picket or parade “in or near” a federal judge’s residence “with the intent of influencing” him “in the discharge of his duty.” During a hearing last month, Attorney General Merrick Garland told Sen. Mike Lee (R., Utah) that the marshals have “full authority to arrest” violators of Section 1507. But according to training slides obtained by Sen. Katie Britt (R., Ala.), deputies on the justices’ residential details are told to enforce the law only as “a last resort to prevent physical harm to the Justices and/or their families.”

Although the Supreme Court has held that the Constitution allows for reasonable restrictions on the time, place and manner of speech, the training slides indicate that the Justice Department believes it is unconstitutional to enforce Section 1507 absent “criminal threats and intimidation.” Regular protests outside the justices’ homes continue.

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Levey called the lengths Alito has to go through a "shame." He also warned it was "a result, in part, of the signal sent by Attorney General Garland’s refusal to enforce the federal statute that makes it a crime to protest near a federal judge’s home with the intent of influencing his or her decisions."

Attorney General Merrick Garland certainly deserves criticism, as highlighted above. Beyond that, then White House Press Secretary Jen Psaki said they "encourage" protests, so long as they were peaceful, and was more so concerned about the end of Roe. Her successor, Karine Jean-Pierre, similarly wouldn't denounce protestors seeking to interrupt Justice Kavanaugh at dinner.

Senate Majority Leader Chuck Schumer (D-NY), who as minority leader threatened Justices Kavanaugh and Gorsuch in 2020 not to vote a certain way in an abortion case, laughed off the protests since he himself has experienced them. 

Alito had to leave his home for a time due to the protests. The opening of this Wall Street Journal piece also calls to mind how he had to give remarks remotely for an event:

Justice Samuel Alito was supposed to speak to law students at George Mason University in Arlington, Va., but when they showed up, he wasn’t there. “That Alito was speaking via closed circuit from a room at the Supreme Court seven miles away, rather than in person, was a sign these are not normal times,” the Washington Post reported. The Post didn’t explain what made the “times” abnormal.

It wasn’t a lingering fear of Covid-19. In a mid-April interview in his chambers, Justice Alito fills us in on the May 12, 2022, event: “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 says. “Still, there were so many protesters and they were so loud that you could hear them.”

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Even still, the Court faces doubt and scrutiny as an institution, but also when it comes to individual members. 

Democrats bought into debunked claims about Alito and the Hobby Lobby case from 2014. Justices Thomas and Gorsuch have been the subject of criticized reports about their financial disclosures. 

Chairman Dick Durbin (D-IL) of the Senate Judiciary Committee invited Chief Justice John Roberts to appear before the committee, who denied the unusual request. While Durbin knew better than to subpoena Roberts, Sen. Richard Blumenthal (D-CT), who sits on the committee has raised subpoenas as an option and even suggested the House Judiciary Committee has a "responsibility" to impeach Justice Thomas.

Alito spoke in-depth to the ways in which Democrats have attacked the Court:

But as the court has grown more conservative in recent years, the left has stepped up the attacks on the court’s “legitimacy,” including character assassination of individual justices, with little objection from mainstream Democrats and plenty of help from the media.

Justice Alito says “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.” Instead, “if anything, they’ve participated to some degree in these attacks.”

Judges are in a double bind: If they don’t respond, the attacks stand. If they do, they diminish the mystique on which judicial authority depends. Justice Alito demurs when we ask about “ethics” accusations against Justice Clarence Thomas from partisan media: “I’ll stay away from that.” But he does address a less-recent drama: “After Justice Kavanaugh was accused of being a rapist during his Senate confirmation hearings, he made an impassioned speech, made an impassioned scene, and he was criticized because it was supposedly not judicious, not the proper behavior for a judge to speak in those terms. I don’t know—if somebody calls you a rapist?”

Those who throw the mud then disparage the justices for being dirty. “We’re being bombarded with this,” Justice Alito says, “and then those who are attacking us say, ‘Look how unpopular they are. Look how low their approval rating has sunk.’ Well, yeah, what do you expect when you’re—day in and day out, ‘They’re illegitimate. They’re engaging in all sorts of unethical conduct. They’re doing this, they’re doing that’?”

It “undermines confidence in the government,” Justice Alito says. “It’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution. You could say the same thing about Congress and the president. . . . When you say that they’re illegitimate, any of the three branches of government, you’re really striking at something that’s essential to self-government.”

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He also spoke to the long-term consequences of such attacks as well:

The court’s attackers clearly seek to poison the well, but to what end? They sometimes proclaim unrealistic goals such as pressuring a disfavored justice to retire or removing him from office through impeachment. Sometimes they speak of packing or “expanding” the court—enacting legislation to create new seats that would immediately be filled by a Democratic president and Senate.

That might become possible if the Democrats have a good election in 2024, although Franklin D. Roosevelt failed in 1937 with enormous majorities, and Joe Biden, with narrow ones in 2021, punted the idea to a committee. It also would open the door to retaliatory packing by a future Republican president and Congress. Justice Alito finds the whole notion appalling: “To change the size of the court just because you want to change the result in cases—that would destroy it. You want to talk about our legitimacy? That would destroy the perception that we’re anything other than a political body.”

Levey also stressed that the damage caused was "no accident" and that "damaging the Court’s legitimacy was one of the purposes of the leak, just like it is the aim of the withering attacks on the conservative justices, especially when--as Alito notes--the mainstream media and even the organized bar cheers those attacks on."

"Justice Alito" and "Samuel Alito" are trending on Twitter as people react to such revelations, which our friends at Twitchy also picked up on. 

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