Justice Alito says leak of abortion opinion made majority ‘targets for assassination’

Justice Samuel A. Alito Jr. said on Oct. 25 a leaked draft opinion to overturn Roe v. Wade made him and others on the Supreme Court “targets for assassination.” (Video: The Heritage Foundation, Photo: Bloomberg/The Heritage Foundation)

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Justice Samuel A. Alito Jr. said Tuesday that the leak of his draft opinion to overturn Roe v. Wade made his colleagues in the majority on the U.S. Supreme Court “targets for assassination.” The leak last spring before the court eliminated the nationwide right to abortion was a “grave betrayal of trust by somebody, and it was a shock,” he said. The threat to the justices, he added, was not theoretical because it “gave people a rational reason to think they could prevent that from happening by killing one of us.”

He noted that a man has been charged in an alleged attempt to kill Justice Brett M. Kavanaugh, who was in the majority to overturn Roe. The California man, arrested near the justice’s home before the final opinion was released, was upset by the leaked draft, authorities said.

Interpretations of the 14th Amendment have been key in extending a slew of legal protections including civil rights, same-sex marriage, and abortion rights. (Video: Adriana Usero/The Washington Post)

Alito’s remarks during an event at the Heritage Foundation touched on criticism of the court, relations between the justices and proposals to expand the size of the Supreme Court. His comments come as polls show public approval of the court has dropped to record lows after the conservative majority allowed greater restrictions on abortion, expanded gun rights and limited the government’s power to address climate change.

When asked about criticism that the court has strayed too far from public sentiment and risks appearing partisan when it overturns precedent, Alito said he has no problem with the public, the media and academics criticizing the court’s legal reasoning in its rulings. But he took issue with those who have questioned the legitimacy of the court.

“To say that the court is exhibiting a lack of integrity is something quite different. That goes to character, not to a disagreement with the result or the reasoning. It goes to character,” Alito said.

The justice did not refer to any colleague by name nor did the interviewer, John G. Malcolm of the Heritage Foundation, but both were clearly referring to comments from Justice Elena Kagan, who dissented when the court overturned the landmark Roe decision. Kagan said during a legal conference in July that the court’s legitimacy is threatened when long-standing precedent is discarded and the court’s actions are seen as motivated by personnel changes among the justices.

“Someone also 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,” Alito said. “That’s not just ordinary criticism. That’s something very different.”

Even as he took some of the blame for pointed, passionate language in the court’s opinions and dissents, Alito emphasized that the justices “have always gotten along well on a personal level” and are eager to return to normal after coronavirus restrictions and the “changed” atmosphere at the court after the unprecedented leak last spring.

“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 on that score,” Alito said, but “none of that is personal.”

In response to a question about proposals to expand the size of the Supreme Court, Alito said the number of justices is for Congress to decide. President Biden convened a bipartisan commission of legal scholars to examine possible changes to the high court in response to calls from Democrats to restore ideological “balance” on the court, now with three liberals and six conservatives, including three justices picked by President Donald Trump. The commission’s report described disagreement about proposals to add justices.

Without tipping his hand, Alito said Tuesday that a court should not be so large that its work becomes unwieldy and cautioned about making changes for political reasons.

“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,” Alito asked. “What would that do to the public perception of our independence and our legitimacy?”

Robert Barnes contributed to this report.