If Justice Alito Doesn't Have Enough Evidence to Name the Dobbs Leaker, Maybe He Shouldn't Say He Knows Who It Was

 by Michael C. Dorf

Last week the Wall Street Journal published a story based on an interview with Justice Samuel Alito. The WSJ requires a subscription but for readers who lack one, I can briefly quote the key portions on which I want to focus. Regarding last year's leak of Justice Alito's majority opinion in the Dobbs case, he says:

“I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody . . . .” The reporter then states that Alito is "certain about the motive," which was, in the Justice's words,  “part of an effort to prevent the Dobbs draft . . . from becoming the decision of the court. 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.” He goes on: “Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination,” in an apparent reference to the apprehension of an armed man outside the home of Justice Brett Kavanaugh. Justice Alito adds: “It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.”

Justice Alito did not (so far as I'm aware) receive but fail to report extravagant largesse from an eccentric billionaire patron with a collection of Nazi memorabilia, nor did his wife participate in a plot to overthrow U.S. democracy. Accordingly, he is not the most ethically challenged of the current Justices. But we oughtn't to grade on a curve. At a minimum, Justice Alito's statements to the WSJ reporter (assuming they were reported accurately), reflect poor judgment.

Let me be clear that I'm criticizing Justice Alito for speaking publicly as he did, not for having a view about the leaker's identity that fails to satisfy some standard of proof that would be needed in a court of law. Consider a criminal law analogy. One can think--and be right--that D probably is guilty of some crime, even though D has not yet been tried for it and would be entitled to a presumption of innocence in a criminal trial. The presumption of innocence does not mean that a defendant actually is innocent until proven guilty. It's merely a restatement of the government's burden of proving guilt beyond a reasonable doubt.

But let's dig into the gap between the standard of legal proof required and the basis for a personal opinion in the context of the Dobbs leak. Justice Alito did not say (or at least was not quoted as saying) that his "pretty good idea" about the leaker's identity amounts to something like proof by a preponderance of the evidence or even clear and convincing evidence but not proof beyond a reasonable doubt. Indeed, he did not mention any particular standard of proof at all. He said it did not rise to "the level of proof that is needed to name somebody." What level is that?

If you are naming somebody in a criminal indictment, then officially all you need is probable cause--although responsible prosecutors (or even merely prudent ones) will seek an indictment only if they believe they can prove guilt beyond a reasonable doubt. But does the reasonable doubt standard have any role here at all? It's not clear that leaking a SCOTUS opinion is a crime. A very serious breach of norms and Court rules, sure, but not necessarily a crime for which proof beyond a reasonable doubt would be needed.

Anyway, Justice Alito did not say he lacked sufficient proof for a criminal indictment or conviction. He said he didn't have enough proof "to name somebody." If criminal prosecution isn't in the offing, what might constrain that freestanding judgment?

One possibility is kindness. Suppose Justice Alito believes but can't prove that X, a former law clerk to one of the Democratic appointees was the leaker. He might not want to destroy X's career based on less than near-certainty.

Another possibility is fear of being sued for defamation. If Justice Alito names X but based only on rumor and innuendo, he could potentially be liable for defamation. Truth is a defense to a defamation case. A hunch isn't. And the actual-malice standard of NY Times v. Sullivan probably wouldn't apply in X's lawsuit because former law clerks aren't public figures. X would have been a public official allegedly abusing government authority at the time of the leak, but it's not clear that the public official category would apply either.

What if Justice Alito thinks that the leaker was not a law clerk but someone who still works at the Court, perhaps even another Justice? If so, any uncertainty would understandably lead to hesitation in publicly leveling an accusation. Indeed, one would imagine that even if Justice Alito had very good evidence that a particular colleague was responsible for the leak, he wouldn't want to name the colleague, given the likely impact on the Court's work going forward. In principle, a SCOTUS Justice could be impeached and removed for leaking; in practice, no SCOTUS Justice will be removed by the Senate, absent something like irrefutable proof that the Justice committed murder or treason, and even then one cannot be so sure.

Given that we don't know what Justice Alito thinks is the level of proof that would be needed to name someone, we also don't know what degree of confidence he has in his assessment of who the leaker is, much less whether that confidence is justified. A "pretty good idea" could mean anything from a hunch to something like clear-and-convincing evidence but not proof beyond a reasonable doubt. Whatever he knows or thinks he knows, however, it's a mystery why he thought it was sensible to tell a reporter he thinks he knows who the leaker is AND that he's not going to say. Was the point to scare the actual leaker? Or was it simply to score points in the grievance politics that Justice Alito started practicing long before Donald Trump was a politician?

It's also worth noting that Justice Alito's notion of causation is odd. He seems to think that the violent threats against Justices were caused entirely by the leak of the Dobbs opinion rather than by its content. However, a person sufficiently violent to attempt to assassinate SCOTUS Justices to prevent the Court from issuing an opinion that those Justices have presumably signed on to would also likely be sufficiently violent to attempt to assassinate Justices in order to create vacancies to be filled by new Justices who would presumably overrule the objectionable decision.

Needless to say--but I'll say it anyway--we should all be appalled by efforts to change the Court's composition through assassination. But leaks are not the main cause of those appalling efforts. The core of the problem is that in a country with a culture of violence and widespread availability of guns, even a small number of unhinged people with very strong opinions about the Court's substantive work can create a huge threat. After all, Roe v. Wade wasn't leaked before it was released. Yet anti-abortion extremists targeted Justice Harry Blackmun for assassination for the two decades after he signed his name to that opinion.

Whatever else the Dobbs leak did, it mostly affected only the timing of the responses (legal and appallingly otherwise) to the opinion, not their substance or intensity.