‘Targets of Assassination’: Alito, Abortion, and the Rule of Law

The Dobbs leak has come to symbolize the ultimate disregard for justice and the rule of law at the heart of the abortion lobby’s modus operandi, which has proven quite willing to stop at … well, nothing.

Supreme Court Justice Samuel Alito poses for the official photo at the Supreme Court in Washington, DC on October 7, 2022.
Supreme Court Justice Samuel Alito poses for the official photo at the Supreme Court in Washington, DC on October 7, 2022. (photo: Olivier Douliery / Getty)

“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey.”

So wrote Supreme Court Justice Samuel Alito in his majority opinion overturning Roe v. Wade.

If he could only have imagined.

No doubt Alito thought up a lot of possible post-Dobbs outcomes but having his draft leaked months before the opinion was due for release likely wasn’t among them. The courage it took to write those words couldn’t be clearer, one year later. 

“This made us targets of assassination,” Justice Alito recently told The Wall Street Journal in a feature-length interview, which describes the justice being forced to deliver a law school speech through Zoom for security reasons in the wake of the ruling. “Still, there were so many protesters and they were so loud that you could hear them,” he said.

An assassination attempt on Justice Brett Kavanaugh. The harassment of Justice Amy Coney Barrett’s minor children. The ongoing smear campaign of Justice Clarence Thomas. The leaking of justices’ addresses and illegal protests outside their homes. A justice chased out the backdoor of a restaurant. This is the stuff of banana republics.

And it is also the stuff of a post-Dobbs America, where the individual who leaked the draft opinion mysteriously “can’t” be found despite an era of unprecedented internet surveillance and where the press that enabled the leaker and endangered the lives of the five justices who overturned Roe were just awarded and feted.

The Politico journalists that published the leaked opinion and shielded the leaker from criminal prosecution were awarded the perfectly Orwellian, “Katherine Graham Award for Courage and Accountability.” According to the judges:

Politico’s efforts to report, verify and publish the draft Supreme Court opinion reversing abortion rights — and the organization’s follow-up work exploring the consequences of the decision — were globally historic and groundbreaking. This was extraordinary journalism by Josh Gerstein and Alex Ward, reflecting the kind of fearless work that Katharine Graham famously promoted. It flipped the long-standing belief in Washington, D.C., that, “nothing leaks from the Supremes.” We enthusiastically applaud not just the unprecedented scoop but also POLITICO’s behind-the-scenes work to authenticate the draft, protect sources and engage with the court ahead of publication. Here was journalism about a ruling that has had a profound and immediate impact on tens of millions of lives.

Never mind the tens of millions of lives lost to abortion. Or accountability for the more than 150 violent attacks on pregnancy resource centers and churches in the wake of the leak. Or for the felony offense committed by the draft leaker which then endangered the lives of half of the nation’s highest court.

Never mind all that, because never mind the rule of law. At least to the abortion lobby and their allies in the press that do their bidding.

Instead, the leak has come to symbolize the ultimate disregard for justice and the rule of law at the heart of the abortion lobby's modus operandi, which has proven quite willing to stop at … well, nothing, including an unprecedented Supreme Court leak and a subsequent and ongoing stream of targeted violence including an actual “night of rage” that really is better described as a ‘year of rage and intimidation of peaceful pro-lifers and the nation’s most senior judges.’

But in reality, the leak and the subsequent spasms of unrest only affirm what Justice Alito wrote in Dobbs when he said, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” 

This sentiment was echoed by a surprising critic of Roe v. Wade, former Supreme Court Justice Ruth Bader Ginsberg, who also argued that the sweeping nature of the decision led to more, not less, division on the question of abortion. “Doctrinal limbs too swiftly shaped,” she once said, “may prove unstable.”

Think what you may about abortion, but that Roe made abortion politics more volatile isn’t really debated. 

Roe,” Justice Alito wrote, “was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,” ... the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”

The problem was that reversing that collision course required justices with the valor to risk everything, including their lives, and to forgo all the worldly accolades and “courage and accountability” awards that come with demonstrating actual courage and accountability to the Constitution. And those justices needed one to sign their name for all, and his name is Justice Samuel Alito.

Perhaps Alito’s greatest act of courage was the clarity of his words. He could have crouched behind the kind flowering language that characterized the opinions of justices like Anthony Kennedy or legally confusing jargon that left lower courts scrambling to unpack. Instead he was crystal clear:

“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe v. Wade and Casey v. Planned Parenthood arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

It’s really the clarity of his words that has him and his colleagues paying a heavy price. But ultimately their cost is our gain. Because the nation has lost 50 years of navigating the most difficult moral question of our time to legal confusion and consequently the slow decay of the rule of law. All the while, the science on unborn life has rapidly accelerated and social norms surrounding pregnancy and stigma have been completely overhauled.

The American people were ready to reclaim their rightful democratic role on the issue of abortion. They just needed a man with the courage and clarity of Justice Samuel Alito to bear the cost of restoring it to them.

Ashley McGuire is a Senior Fellow with The Catholic Association.

Leigh Fitzpatrick Snead is a Fellow with The Catholic Association.