Supreme Court Justice Says He Thinks He Knows Who Leaked Draft Abortion Opinion

Supreme Court Justice Says He Thinks He Knows Who Leaked Draft Abortion Opinion
Supreme Court Justice Samuel Alito poses in Washington on April 23, 2021. (Erin Schaff/Pool via Reuters)
Zachary Stieber

Supreme Court Justice Samuel Alito says he thinks he knows who leaked a draft opinion in a major abortion case.

“I personally have a pretty good idea who is responsible,” Alito told the Wall Street Journal.
The leaked opinion in Dobbs v. Jackson Women’s Health Organization was authored by Alito, a George W. Bush appointee. Politico obtained the draft opinion and published it on May 2, 2022. The final opinion was largely similar. Issued in June 2022, it struck down Roe v. Wade, the 1973 Supreme Court ruling that found access to abortion was a constitutional right.
Supreme Court Marshal Gail Curley investigated the breach and concluded in a January report that there was insufficient evidence to determine the identity of the person or persons who disclosed the draft.

“Investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion,” she wrote.

Curley spoke with each justice and followed up on leads, none of which implicated justices or their spouses. The marshal said that was why she didn’t require justices to sign sworn affidavits attesting they weren’t behind the leak.

The Supreme Court said the investigation would continue and has not issued any update since.

Alito said that Curley “did a good job with the resources that were available to her.”

He also said that there is not enough evidence to publicly name a suspect.

While he believes he knows the responsible party, “that’s different from the level of proof that is needed to name somebody,” Alito said.

He is, however, sure of what motivated the disclosure.

“It was a part of an effort to prevent the Dobbs draft ... from becoming the decision of the court,“ Alito said. ”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.”

The disclosure of the draft triggered widespread protests, including at the homes of Alito and other justices believed to be supportive of his position.

Alito said it was “rational” for people to think they might be able to alter the final outcome of the case if they killed one of the justices. Six of the justices on the nine-justice court were appointed by Republicans, with several regularly siding with the Democrat appointees in high-profile cases. The Dobbs ruling was a 6–3 decision.

The protests violate federal law, but no arrests have been made, even after a man tried to assassinate Justice Brett Kavanaugh, a Trump appointee who ultimately sided with Alito in the Trump case.
Attorney General Merrick Garland, a Biden appointee, has said that U.S. Marshals have the authority to arrest anyone in violation of federal law, including the law that forbids  “picketing” or “parading” near the residences of judges or justices in order to influence the outcome of a case. But they were told not to arrest the protesters, according to materials obtained by Sen. Katie Britt (R-Ala.) and released earlier this year. Garland said he had not seen the materials.