WASHINGTON — Justice Samuel A. Alito Jr., the author of the majority opinion that overruled Roe v. Wade last June, told The Wall Street Journal’s opinion pages that he had “a pretty good idea who is responsible” for leaking a draft of his opinion to Politico.
Justice Alito added that he did not have “the level of proof that is needed to name somebody.” That echoed language in the Supreme Court’s report on its investigation of the leak, which said that “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.”
The interview, which was conducted on April 13 and published on Friday, was as interesting for its existence and forum as for its substance, which was mostly familiar.
A few days before the Politico bombshell last May, an editorial in The Journal provided hints about tensions at the court that appeared to be based on inside knowledge. The editorial expressed concern that Chief Justice John G. Roberts Jr. was trying to undermine a five-justice majority by trying to persuade Justices Brett M. Kavanaugh and Amy Coney Barrett to join him in upholding a Mississippi law that banned most abortions after 15 weeks but to stop short of overruling Roe outright.
The author of the majority opinion was not yet publicly known. “Our guess,” the editorial said, correctly, was that it would be Justice Alito.
In the new interview, Justice Alito rejected the theory that the Politico leak had come from the right side of the court in an effort to lock in what was then and turned out to be a five-justice majority for overruling every part of Roe, the 1973 decision that established a constitutional right to abortion.
Repeating an argument he made in October, he said the leak endangered the lives of the members of the majority, as the draft would not be law unless there were five votes in its favor when it was issued.
“Look,” Justice Alito said in the new interview, “this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”
In June, an armed man was arrested near Justice Kavanaugh’s home and charged with attempted murder. The man said he was upset with the leaked draft suggesting the court would overturn Roe, the police have said.
Justice Alito said the justices now have exceptional security.
“I don’t feel physically unsafe, because we now have a lot of protection,” he said. He is, he added, “driven around in basically a tank, and I’m not really supposed to go anyplace by myself without the tank and my members of the police force.”
He added that he was disappointed that lawyers had not come to the defense of the court, which has faced mounting scrutiny for what critics say are serious ethical lapses.
“This type of concerted attack on the court and on individual justices” is, he said, “new during my lifetime.”
He added: “We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.”
Instead, Justice Alito said, “if anything, they’ve participated to some degree in these attacks.”