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On Friday, the Wall Street Journal published an interview that James Taranto held with Supreme Court Justice Samuel Alito. The piece was significant in that it showed how the June, 2022, Dobbs decision made the justices “targets of assassination,” as well as impacted the legitimacy of the court.
But everyone in the media are mainly focusing on a comment that Justice Alito made about the leak of the Dobbs decision draft, which Alito authored:
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.
So that comment reignited the guessing game.
In May, 2022, just before the decision in Dobbs v. Jackson Women’s Health Organization, the ruling that overturned Roe v. Wade, someone leaked the draft. Gail Curley, the Marshal of the Supreme Court, led a team to discover the leaker, but to no avail. In January the team announced that they were at a dead end.
But, said Justice Alito, those who claim it was a conservative don’t make sense:
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.
Chief among those who held that a conservative leaked the decision was NPR’s Nina Totenberg, who after the leak suggested this pretzel logic:
But I think the only one that makes sense is that it came from somebody who was afraid that this majority might not hold, that Chief Justice Roberts might persuade one of the conservatives to come over to him in a much more moderate opinion.
Even more ridiculous was Jennifer Rubin of the Washington Post who tweeted some Pee Wee Herman logic:
Alito thinks he knows who Dobbs leaker is — and says it’s not a conservative … every third grader knows that’s what you say when YOU did it.
Whereupon former DOJ attorney Jeff Clark responded:
This makes no sense & does not even take on Alito’s point that the leak exposed those in the Dobbs majority to assassination. No one answers the cui bono question by saying the one who benefits from the leak is the one at risk of violent death. No one but genius Jennifer Rubin.
On May 12, 2022, Justice Alito was supposed to speak to law students at George Mason University in Arlington. But he didn’t show up. Instead, he gave his speech via Zoom from a room in the Supreme Court building. Not because of Covid, mind you. Police had advised the justice that it wasn’t safe for him. Alito told Taranto:
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.
I was in Washington, DC, at that very time. The Supreme Court building was not only barricaded, but the street in front of it was also blocked off. Police presence was everywhere to monitor protestors. It was much safer for Justice Alito to remain within the SCOTUS edifice.
Personal image.
Alito continued:
Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination. It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.
And indeed, on June 8, 2022, police charged a 26-year-old man with the attempted murder of Justice Brett Kavanaugh. He had traveled from California to break into Kavanaugh’s house and kill the justice, then himself. Fortunately he had second thoughts and turned himself in.
Nowadays, Justice Alito says he doesn’t feel unsafe “because we [the justices] have a lot of protection.” He told Taranto that 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.” In addition, Deputy US marshals continue to guard the homes of the justices around the clock.
Moreover, the purpose of the leak was not only to threaten the safety of the justices, but to influence them. As Alito said:
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.
George Washington University law professor Jonathan Turley wrote that the damage wrought by the Dobbs leaker could extend into the years ahead. For example, if this was a clerk, would the justice who appointed him or her want to professionally recommend someone so lacking in integrity?
If this was a clerk and the evidence is known to all of the justices, it would be interesting if the justice responsible for the appointment felt comfortable in recommending the young lawyer for later employment…
In a weird way, it seems even more troubling that the likely culprit may have been identified, but has proceeded into practice as an attorney.
Plus, what if the leaker revealed themself and become a hero to those who supported such an action?
What is even more troubling is that, if the culprit were to come forward, the individual would likely be lionized by many. Indeed, I would not be surprised if, after the statute of limitations has passed, there could come a time when this person may want to take “credit” for this disgraceful act.
Finally:
Whoever is responsible for this leak violated the most fundamental rules of ethics in our profession. It was a betrayal of not just the Court and the bar, but the public in shattering the confidentiality of the judicial process.
The damage may last into perpetuity, especially in these days of political divisiveness and acrimony.
Notice how Justice Alito told James Taranto that he thinks he knows who the leaker is. However, as he put it, he doesn’t have the “level of proof” to name that person. All he tells us is that the leaker, by logic, was someone on the political left.
Which is a tenet we all should follow, including the media.
Do we really know why Fox News fired Tucker Carlson? No, we don’t, nor is it likely we ever learn the complete truth. Yet there’s no lack of people who claim to know, despite not having any “level of proof.” Or Democrats and their media sycophants who were positive that former President Trump colluded with the Russians to win the 2016 election. Rep. Adam Schiff assured them that he had proof of collusion — which came to nothing.
On the other hand, a lot of Republicans are positive that the 2020 election was stolen, even though there is no definitive “level of proof” there, either. In the same manner as Schiff, attorney Sydney Powell assured Trump and his followers that she had the goods on the stolen election — except she didn’t.
We are much too eager to believe that which confirms our prejudices. Even though St. Paul was writing of early Church doctrinal issues in 2 Timothy 4:3-4, his words could apply today to politics: … but having itching ears they will accumulate for themselves teachers to suit their own passions, and will turn away from listening to the truth and wander off into myths.
Of course we can speculate our theories about events. But we should also be willing to admit that we really don’t have “the Truth” when we don’t have access to all the information.
Justice Alito demonstrated wisdom by not naming names or pointing an accusatory finger. If only we were all so discerning.
Featured image: Cknight70/flickr/cropped/CC BY 2.0.
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