Supreme Court Justice Samuel Alito on Tuesday called the leak of his draft opinion overturning Roe v. Wade last spring a “grave betrayal” and “shock,” saying that it put the lives of some of the high court’s conservative justices at risk.
In his most extended and direct comments about the leak to date, Alito said it made the justices who were thought to be in the majority “targets for assassination” because it gave some people a reason to think they may be able to prevent the release of the final opinion “from happening by killing one of us.” He also noted officials have charged a man with attempting to murder Justice Brett Kavanaugh.
He did not offer an update on the leak investigation, but his comments suggested the court has yet to find out who breached its inner sanctum.
The leak “certainly changed the atmosphere at the court for the remainder of last term,” the justice said, but once the new term started, the justices wanted to “get back to normal.”
“And that’s what we hope will happen,” Alito said during an appearance at the conservative Heritage Foundation. He reiterated that although the justices don’t always agree on paper, they have “always gotten along very well on a personal level.”
But in the same appearance, Alito suggested he disagreed with public comments made by his liberal colleagues questioning the legitimacy of the court.
Asked about comments made over the summer recess by a “couple of his colleagues,” Alito defended the court.
“Everybody in this country is free to disagree with our decisions,” he said, adding that “there’s no question about that.”
“But to say that the court is exhibiting a lack of integrity is something quite different that goes to character,” he said.
It “crosses an important line,” Alito said, when someone says that a court is “acting in a way that is illegitimate.” The comments elaborated on a statement the justice gave to The Wall Street Journal in September.
“I don’t think anybody in a position of authority should make that claim lightly,” he said. “That is not ordinary criticism – that is something very different,” he added.
Alito did not directly refer to his colleagues, but over the summer recess, Justice Elena Kagan did speak about how overturning precedent was a factor that could call into question the legitimacy of the court.
“I think judges create legitimacy problems for themselves – undermine their legitimacy – when they don’t act so much like courts and when they don’t do things that are recognizably law,” she said before an audience in New York.
Last week, Kagan again spoke about the importance of respecting prior cases. Without mentioning Roe and speaking generally, she said, “You know, people depend on law. People rely on law.”
“You know if you give people a right, and then you take the right away. Well, in the meantime, they’ve understood their lives in a different kind of way,” she said before an audience at the University of Pennsylvania.
Earlier in his remarks on Tuesday, Alito talked in general terms about overturning precedent and a respect for the legal doctrine called “stare decisis” – which means to “stand by things decided.” He said that while it is “not an inexorable command,” it remains “important.”
“We follow precedent most of the time,” he said.
Alito’s comments come as the justices have already met for the first sitting of the new term, which included significant cases on voting rights and the environment.
In October, they will take on two hugely consequential cases concerning whether universities and colleges can continue to take race into consideration as a factor for admissions in order to improve diversity. Challengers are asking the Supreme Court to overturn precedent that has been on the books for decades.