Politico published Justice Alito’s draft opinion, which ultimately overturned Roe v. Wade, a year ago. Alito agrees the court does not have evidence sufficient to publicly accuse anyone of leaking the draft. Ricky Carioti/The Washington Post
Justice Samuel A. Alito Jr. said in an interview earlier this month that he has a “pretty good idea” who leaked his draft Supreme Court opinion that overturned Roe v. Wade and its constitutional right to abortion last year, but that neither he nor the court can prove it.
The leak rocked the Supreme Court and its tradition of secrecy involving unreleased opinions. After a months-long investigation, Supreme Court Marshal Gail Curley said in January that the court could not determine with certainty “the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico.”
The news site published Alito’s draft opinion almost exactly a year ago.
In an April 13 interview with a Wall Street Journal editorial editor and a private lawyer active in conservative causes, Alito agreed that Curley did not have evidence sufficient to publicly accuse anyone of leaking his draft opinion in Dobbs v. Jackson Women’s Health Organization.
“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,” Alito said, according to the story published online Friday. He said he was sure the leak “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.”
Alito said the theory that the draft was leaked by someone on the right to lock in the five votes necessary to overturn Roe “is infuriating to me.”
“Look, this made us targets of assassination,” Alito told his interviewers. “Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”
Alito made similar statements last fall at an event at the conservative Heritage Foundation. In the interview with the Journal, Alito noted that last June an armed man was arrested outside the home of Justice Brett M. Kavanaugh. The man has pleaded not guilty to charges of attempted assassination and is awaiting trial.
“It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us,” Alito told James Taranto, editorial features editor for the Journal, and David B. Rivkin Jr., a lawyer active in conservative causes. Rivkin frequently writes for the Journal’s opinion pages and has helped lead the legal challenge to the Affordable Care Act.
Alito added that he does not 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.”
Alito declined to answer questions about Justice Clarence Thomas, the interviewers wrote. Thomas has been under fire after ProPublica reported that he accepted extravagant vacations, private jet travel and gifts from his billionaire friend and Republican donor Harlan Crow, who also bought the justice’s childhood home in which his mother continues to live. Thomas did not report the expenditures on his disclosure forms, which are supposed to provide transparency about potential ethical conflicts.
Without commenting on Thomas, Alito said he believes that reports about alleged ethical violations by justices are attempts to damage the court’s credibility now that conservatives are firmly in control. “We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us,” he said.
“And then those who are attacking us say, ‘Look how unpopular they are. Look how low their approval rating has sunk.'” Alito said. “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’?”
An NPR/PBS NewsHour/Marist poll released Wednesday showed that 37% of Americans have “a great deal” or “quite a lot” of confidence in the Supreme Court, down from 59% who said they had faith in the court in 2018.
Alito said the public should question the court’s legitimacy “if they see that what we are doing is not following the Constitution and the laws.”
But he defended the court’s willingness to overturn legal precedents, saying some cases, such as Roe and the court’s follow-up decision in Planned Parenthood v. Casey, “are so egregiously wrong, so clearly wrong, that that’s a very strong factor in support of overruling them.”
Alito’s critics accuse him of withholding such views at his confirmation hearings nearly 30 years ago.
“Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time,” he said at his Senate hearings. “It is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed.”
When pressed at the time, Alito said it was clear there would be challenges to the law, and it would be wrong for a justice to say, “I’m not even going to listen to you. I’ve made up my mind on this issue.”
Still, when he authored the decision overturning Roe last spring, some critics maintained his testimony was misleading.
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