Justice Samuel Alito claims to know who leaked the Dobbs draft. He can’t be alone. Sooner or later, someone is bound to come forward or be found out.

Photo by Volodymyr Hryshchenko on Unsplash

Like every other point of political intrigue these days, the tale of the Supreme Court Dobbs draft leak is a story within a story within a story. Like every other news story these days, the news coverage itself has become part of the story.

“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,” began James Taranto and David B. Rivkin Jr. for the Wall Street Journal on April 28, 2023. “‘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.”

During his interview for the Wall Street Journal, Supreme Court Justice Samuel Alito was less reticent on the subject.

“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,” Justice Samuel Alito told the Wall Street Journal about the May 12, 2022, speech.

“Still, there were so many protestors and they were so loud that you could hear them,” Justice Alito added.

The information wasn’t surprising to anyone with knowledge of how speakers viewed as conservatives are treated on many college campuses these days. It may still mystify some observers, however, why law students wouldn’t want to hear the very Supreme Court Justice who authored such a controversial opinion as Dobbs explain and defend his position, but, as the Washington Post admitted, these are strange times.

“The leak created an atmosphere of suspicion and distrust,” Alito told the WSJ. “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.”

“It was part of an effort to prevent the Dobbs draft from becoming the decision of the court,” Justice Alito told the WSJ frankly. “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.”

Other countries have allowed such a thing to rage unchecked in society. Today in any number of countries, judges preside over courtrooms hooded and masked to conceal their identities and prevent them and their families from becoming targets of violence by anyone who doesn’t agree with one legal opinion or another.

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

“I don’t feel physically unsafe, because we now have a lot of protection,” says Alito. “I am 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.”

The homes of the Supreme Court Justices are currently receiving 24/7 protection from the U.S. Marshals Service and federal law makes it illegal to, “picket or parade in or near,” a Justice’s home, “with the intent of influencing him in the discharge of his duty.”

Nevertheless, there was a close call last summer when a man was arrested outside the home of Justice Brett Kavanaugh and charged with attempted assassination.

“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,” wrote Taranto and Rivkin for the WSJ. “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’.”

Supreme Court Justices aren’t usually as open about court goings-on with the press. It is worth considering why Justice Alito felt compelled to speak out now in defense of the court and its members.

“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,” Alito explained. “I don’t know — if somebody calls you a rapist?”

“We’re being bombarded by this,” he said. “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 are saying — 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,” complains Alito. “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 the Congress and 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.”

Besides the Dobbs leak and attacks on the court, Justice Alito is also concerned about the prospect of expanding the court.

“To change the size of the court just because you want to change the result in cases?” wonders Alito on the subject of court packing. “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.”

“The court’s attackers clearly seek to poison the well, but to what end?” wondered the Wall Street Journal in the same vein. “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.”

“This is not a situation in which the right thing to do is different from the expedient thing to do, at least in the short term,” says Alito. “People will have reason to question our legitimacy if they see that what we are doing is not following the Constitution and the laws, but we’ve got our finger to the wind and we’re issuing decisions that nobody really believes represents our sincere thinking about the law, but are structured in a way to curry favor, avoid controversy or something like that.”

As for the leaker, and the damage done to the Supreme Court, it must surely be only a matter of time before that person is revealed. Or takes credit.

“I personally have a pretty good idea who is responsible, but that is different from the level of proof that is needed to name somebody,” said Alito of the leaker, who has yet to be caught or come forward, despite an investigation.

If Alito knows who leaked the Dobbs draft, chances are other members of the court — and court investigators — have their suspicions as well. Reading between the lines of Alito’s remarks, it also appears that the leaker is still in a position of trust within the Supreme Court.

Since no one has been publicly named, it is safe to assume that the person responsible is still privy to confidential opinions on other controversial court cases. How long before this same leaker — or a copycat inspired by the original breach — does the same thing again?

(contributing writer, Brooke Bell)