This strongly implies that Justice Alito believes no conservative was the source of the leak aimed at securing the votes.
Jan Crawford spoke at length with Justice Alito in an extended interview. There is a lot to unpack, but this portion concerning the Dobbs leak stands out as especially consequential:
The fallout began in late April 2022, when Politico informed the Court that it possessed a draft and intended to publish it. The justices were gathered in the Court’s private dining room for one of their routine lunches when the chief justice disclosed the leak. By tradition, the justices share meals when they’re in the building for arguments or conference, sometimes several days each week. It serves as a chance to discuss matters beyond the cases. That is the one guideline.
Hearing during a collegial lunch that a draft opinion had leaked for the first time in Court history was hard for the justices to process. Alito said he was “stunned.”
“It was quite a shock,” Alito said. “But within a relatively short period of time, the thought occurred to me, and I think to the others in the majority, that this would endanger us. And it made us targets for assassination.”
Security, Alito noted, was heightened immediately. A month later, in June 2022, the world would understand why. In the middle of the night, as Justice Brett Kavanaugh and his family slept at their Maryland home, a would-be assailant approached their backyard with a bag containing a firearm and ammunition, a knife and nail punch, duct tape, zip ties, a crowbar and other burglary tools, including specialized shoes designed to muffle his footsteps.
He was resolved to kill justices before the Court released its Dobbs decision. With its slim 5-4 majority, it would only take one justice. He wrote on private messaging boards that he aimed to kill at least three of the conservatives and, as prosecutors later described it, to “single-handedly and irrevocably to alter an entire branch of the United States government.”
At the last moment, the man spoke to his sister on his cell phone, and she managed to talk him out of it. He was arrested and later convicted for the attempted assassination of Kavanaugh.
“His goal was to change the decision in the case. So that was quite predictable,” Alito said. “And whoever leaked it knew or had good reason to know that that would be the consequence of leaking it. And Politico knew, or should’ve known, that that would be the consequence of their decision to publish it.”
Politico has described its choice to publish the leaked draft as an “unprecedented view into the justices’ deliberations” that is “plainly news of great public interest.”
The identity of the leaker remains unknown. After Politico published its piece in early May, one theory circulated that a conservative had leaked the draft to lock in the five votes, in case any of the justices in the majority wavered. Alito appeared almost incredulous at that suggestion.
“It’s implausible that any of us would have done that for exactly the reason I’ve mentioned, because this pinned a target on our backs,” Alito said. “And it was very fortunate that that planned attack (on Kavanaugh) was not successful.”
There were two broad theories about who might have leaked the opinion. One suggested the leak came from the right as a tactic to lock in votes and forestall a flip. The other speculated that the leak originated on the left as a means to pressure the majority to flip the vote—or, worse, to sow seeds that could delegitimize the Court.
Alito makes it clear that the person who leaked should have anticipated that publishing the draft would put a bullseye on the five-member majority. No conservative would plausibly engage in such an act. He flatly rejects the first theory, while the second remains plausible.
Crawford also confirms that Justice Thomas assigned the majority opinion.
With Roberts in dissent, urging the five to avoid overturning Roe, Thomas was the senior justice in the majority. He assigned Alito the opinion.
This was the prevailing speculation from the outset, reinforcing the view that Chief Justice Roberts did not support overruling Roe.
