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.