Washington — The unprecedented leak of the draft Supreme Court opinion to reverse Roe v. Wade put the lives of the justices who voted to unwind the constitutional right to an abortion at risk, Justice Samuel Alito, who authored the draft and final opinion by the court’s conservative majority, said Tuesday.
“The leak also made those of us who were thought to be in the majority in support of overruling Roe and Casey targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us,” Alito said during a question-and-answer session at The Heritage Foundation, a conservative think tank.
Alito said there is support for his notion that the justices’ lives were in danger: A California man armed with a gun, knife and various tools was arrested outside Justice Brett Kavanaugh’s Maryland home in June and charged with attempted murder. The man, Nicholas Roske, said he was upset about the leak of the draft opinion indicating Roe would be overturned and the shooting at an elementary school in Uvalde, Texas, according to law enforcement.
In addition to making the justices targets of violence, Alito said the leak of the draft opinion to the news outlet Politico in May “changed the atmosphere” at the Supreme Court for the rest of its term, which ended this summer.
“It was a grave betrayal of trust by somebody and it was a shock because nothing like this had happened in the past,” he said.
Alito’s final majority opinion striking down Roe in June closely mirrored his draft, the release of which sparked protests outside the Supreme Court and some of the justices’ homes. The Supreme Court police reported a “significant increase in violent threats,” including threats made on social media and directed at members of the court, according to a May intelligence bulletin from the Department of Homeland Security, and Attorney General Merrick Garland directed the U.S. Marshals Service to provide additional support to the marshal of the Supreme Court to ensure the safety of the justices amid the public backlash.
Chief Justice John Roberts directed the marshal of the court to investigate the leak, though it’s unclear whether the identity of the person who provided the draft opinion to Politico is known.
Alito said he and his fellow justices, as well as the staff at the Supreme Court, want to “get back to normal to the greatest degree possible” in the wake of Roe’s reversal and the COVID-19 pandemic, which closed the building’s doors to the public. The high court convened for its new term last month and has welcomed members of the public back for oral arguments.
Alito also noted that across his 16 years on the Supreme Court, the justices have always gotten along on a personal level, though he acknowledged that often is not reflected in their written opinions.
“We sometimes disagree pretty passionately about the law, and we have not in recent years been all that restrained about the terms in which we express our disagreement. I’m as guilty as others probably on this score,” he said. “But none of that is personal, and that is something that I think I wish the public understood.”
During the wide-ranging public interview, Alito also pushed back on criticisms that the Supreme Court has strayed from public sentiment in some of its decisions and become partisan, threatening its legitimacy.
“Everybody in this country is free to disagree with our decisions. There’s no question about that. Everybody is free to criticize our reasoning, and in strong terms. And that certainly is done in the media and in writings of law professors and on social media,” he said. “But to say that the court is exhibiting a lack of integrity is something quite different. That goes to character.”
Alito added that a person “crosses an important line when they say that the court is acting in a way that is illegitimate. I don’t think anybody in a position of authority should make that claim lightly. That’s not just ordinary criticism. That is something very different.”
The justice also weighed in on proposals to add seats to the Supreme Court, saying the size is determined by Congress, though nine is a “good number.” But Alito also raised a rhetorical question that aimed to cut to claims about the court’s legitimacy.
“If Congress were to change the size of the court, and the public perceived that the reason for changing the size of the court was to influence decisions in future cases that Congress anticipated the court making, deciding at some point in the foreseeable future, what would that do to the public perception of our independence and legitimacy?” he asked.
