Supreme Court Justice Samuel Alito has denounced widespread criticism of the high court’s legitimacy and said the unprecedented June leak of the high court’s draft opinion overturning Roe v Wade painted a target on the backs of the right-wing justices.
Speaking at the Heritage Foundation on Tuesday, Alito called the unprecedented leak of the draft — which he authored and Politico published over a month before the ruling — “a grave betrayal by somebody” that “changed the atmosphere” at the court and endangered him and his colleagues in the majority.
“The leak also made those of us who were thought to be in the majority in support of overruling Roe and Casey targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us,” Alito told interviewer John G. Malcolm at the right-wing think-tank.
The conservative justice noted the arrest of an armed man, Nicholas Roske, outside Justice Brett Kavanaugh’s Maryland home a month before the high court’s ruling. Roske, charged with attempted murder, cited the end of Roe as depicted in the leaked draft as one of his grievances.
The final opinion was a stunning rebuke of the nearly 50-year-old Supreme Court precedent that made safe, legal abortion a constitutional right, reinforced 19 years later in the 1992 decision of Planned Parenthood v Casey.
“Roe was egregiously wrong from the start… …Far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division,” Alito wrote in the final, annotated opinion.
Far from bringing about a national settlement of the abortion issue, Alito’s own opinion provoked weeks of nationwide protests and generated criticism of the Supreme Court’s legitimacy, which many consider impaired by the slew of hard-right opinions not based on precedent but on the political preferences of the conservative supermajority.
“Everybody is free to criticize our reasoning, and in strong terms,” Alito said, visibly unabashed. "But 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."
Neither Malcolm nor Alito referred to the court’s critics by name, but it was evident when the conservative took a swipe at his liberal counterpart, Justice Elena Kagan, who accused the conservative justices of delegitimizing the court’s standing in September.
“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.”
When questioned about proposals to increase the number of justices to restore parity in the court’s decision-making, Alito tipped his hand, warning that efforts to bring in more justices could be perceived as political.
“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?”
Alito played down the notion that internal deliberations in the court are heated, saying that despite the forceful language in its opinions and dissents, the justices “have always gotten along well on a personal level” and wished to "get back to normal to the greatest degree possible" in the aftermath of Roe’s reversal.
The Supreme Court’s new term, which began on October 3, promises to be just as controversial as its last, during which 14 rulings were made on a 6-3 vote, some of which abolished abortion rights — a precedent that conservative justices promised to sustain but abolished any way; expanded gun rights; and curbed the government’s ability to address climate change.
The conservative majority has already shown a willingness to take on even more divisive issues in its bid to move the court, and eventually the country, rightward, say legal experts.
"The justices are taking things that are causing real conflicts around the country; they're taking issues even if there's a lot of media attention, even if it's a hot-button issue - and they're going to decide it anyway," Megan Wold, an ex-law clerk to Alito, told Reuters last month.