Justice Alito says leaked draft opinion made conservatives ‘targets for assassination’ | Courthouse News Service
Thursday, November 30, 2023
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Justice Alito says leaked draft opinion made conservatives ‘targets for assassination’

In a wide-ranging lecture, the conservative justice discussed claims of in-fighting between the justices, the court’s legitimacy, and free speech on college campuses.

WASHINGTON (CN) — Justice Samuel Alito on Tuesday night said the unprecedented leak of his draft opinion overturning Roe v. Wade put a target on certain justices on the court. 

“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,” the Bush appointee said during a lecture at the conservative Heritage Foundation. 

Alito described the leak as a grave betrayal of trust and claimed it changed the atmosphere at the court for the remained of the last term. 

“It was a shock because nothing like that had happened in the past,” Alito said. 

Since then, however, Alito said the court is attempting to return to normal. At the beginning of the month, the justices welcomed back the public and reporters for the first time in over two years. Alito said that while the court’s opinions may lead the public to believe the justices don’t agree on much, they actually get along. 

“During my 16-year term on the court, the justices have always gotten along very well on a personal level,” Alito said. “I think the public, when they read our opinions, probably misses that. We sometimes you can see by reading those opinions, we sometimes disagree pretty passionately about the law.” 

In recent months the justices have been warring in the press over the state of the court’s legitimacy. Alito recently pushed back on comments by Justice Elena Kagan, telling the Wall Street Journal that questioning the court’s integrity crossed a line. 

“We have not in recent years been all that restrained about the terms in which we express our disagreement,” Alito said. “I am as guilty as others probably on this score, but none of that is personal, that is something that I think I wish the public understood.” 

Alito doubled down on the assertion that attacks on the court’s integrity crossed a line. 

“To say that the court is exhibiting a lack of integrity is something quite different, that goes to character … Someone also crosses an important line when they say that the court is acting in a way that is illegitimate,” Alito said. “I don't think anybody in a position of authority should make that claim lightly. That's not just ordinary criticism. That is something very different.” 

The court’s ruling overturning Roe was accompanied by a concurring opinion from Justice Clarence Thomas questioning the original basis for how Roe was decided — the due process clause. Substantive due process creates rights not enumerated in the Constitution, and court watchers have worried that its demise might usher in the retraction of other rights like birth control and same-sex marriage. Alito appeared open to the discussion of reconsidering this process for creating rights. 

Commenting on calls to reform the court, Alito recognized Congress’ power to adjust the number of justices on the court. However, he also questioned how Congress’ actions might be perceived in terms of the court’s legitimacy. 

“If Congress were to change the size of the court and the public perceives that the reason for changing the size of the court was to influence decisions in future cases that Congress anticipated the court might be deciding at some point in the foreseeable future, what would that do to the public perception of our independence and their legitimacy,” Alito asked. 

Alito also stepped into the culture wars surrounding speech on college campuses claiming the state of free speech at law schools was “dangerous” for the future of a democratic country. 

“Based on what I have read, what has been told to me by students, it's pretty abysmal and it's disgraceful and it's really dangerous for our future as a united democratic country,” Alito said. 

The debate over how colleges tolerate free speech was launched back into headlines after a group of conservative judges vowed not to hire Yale Law graduates as clerks because of free speech concerns. Alito — who is an alum — claimed he learned little about constitutional law while at the university. 

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