Alito also took aim at campus cancel culture during wide-ranging talk at Heritage Foundation
Supreme Court Justice Samuel Alito said the leak earlier this year of a draft opinion reversing Roe v. Wade made conservative justices “targets for assassination” and changed the atmosphere at the court.
Alito’s comments came during a moderated conversation at the Heritage Foundation in the nation’s capital on Oct. 25. At the end of the discussion, Alito was given Heritage’s Defender of the Constitution Award.
At the event, Alito also lamented the lack of freedom of speech in higher education, said legal precedent was overrated as a means of deciding cases and said that the court’s Citizens United ruling years ago allowing corporations to fund political campaigns has been misunderstood by critics.
The leak took place while the court’s members were considering how to rule in Dobbs v. Jackson Women’s Health Organization.
An early version of Alito’s draft majority opinion in Dobbs made its way to the media, an unprecedented leak of a full high court opinion. Politico published the draft document dated Feb. 10 on May 2 without disclosing its source. In both the draft and the final version of the Dobbs decision issued June 24, the court overturned Roe v. Wade, the 1973 precedent that legalized abortion nationwide. The Dobbs ruling, which held that there is no constitutional right to abortion, returned the regulation of abortion to the states. In Dobbs, the court also reversed a related 1992 precedent, Planned Parenthood of Southeastern Pennsylvania v. Casey, which declared that a woman had a right to obtain an abortion before fetal viability without undue interference from the state.
The leak “was a great betrayal of trust by somebody,” Alito said, without providing any new information about the leak investigation being conducted by court officials. Suspicions and theories abound, but the identity of the leaker or leakers is still unknown.
“It certainly changed the atmosphere at the court for the remainder of the last term. The leak also made those of us who were thought to be in the majority in support of overruling Roe and Casey targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us.”
Alito noted that a man has been charged in connection with a plot to assassinate Justice Brett Kavanaugh, but refused to say more because the matter is still before the courts.
Hostility to Free Speech
Alito said he was concerned about hostility to free speech in colleges and universities.
Based on reports he has read, the situation is “pretty abysmal, and it’s really dangerous for our future as a united democratic country.”
“We depend on freedom of speech … [which] is essential. Colleges and universities should be setting the example, and law schools should be setting the example for the university because our adversary system is based on the principle that the best way to get at the truth is to have a strong presentation of opposing views, so law students should be free to speak their minds without worrying about the consequences.
“And they should have their ideas tested in rational debate and if law schools are not doing that and according to these reports, some of them are not doing that, they are really not carrying out their responsibility.”
Alito’s comments came after two federal judges appointed by then-President Donald Trump vowed in recent weeks not to hire judicial clerks from Yale Law School because they say its campus is dominated by cancel culture. The two judges are James Ho of the U.S. Court of Appeals for the 5th Circuit and Elizabeth Branch of the U.S. Court of Appeals for the 11th Circuit.
Ho was incensed by the treatment of Kristen Waggoner of the conservative Alliance Defending Freedom at a March 10 event at the law school. Students physically threatened and shouted down Waggoner during a panel discussion about Uzuegbunam v. Preczewski in which the Supreme Court found another college violated students’ right to religious free speech on campus. Waggoner was their lawyer.
According to National Review, 14 federal judges have joined the Yale boycott.
Alito also defended the court’s decision in Citizens United v. FEC (2010), which held that the free speech protections of the First Amendment applied not only to individuals but also to corporations, nonprofits, and labor unions.
The ruling, which has been bitterly attacked by the left for more than a decade, struck down part of the Bipartisan Campaign Reform Act of 2002 that forbade independent expenditure-funded “electioneering communication” by such organizations within 30 days of a primary election or 60 days of a general election, or from making any expenditure advocating the election or defeat of a candidate at any time.
The case arose when Citizens United, a conservative not-for-profit corporation, wanted to broadcast a film it made critical of then-presidential candidate Hillary Clinton before the Democratic Party’s presidential primaries in 2008.
Alito said that Citizens United “held that a little corporation, Citizens United, had the right to talk about the qualifications of a candidate for high public office in the period shortly before the election—that goes to the very core of what the First Amendment protects.
“The main popular criticism of the decision that you hear is … that freedom of speech applies to human beings. It doesn’t apply to corporations. To this day, I think you can get bumper stickers that make the point. And I think to ordinary people, it has immediate appeal.”
But what would it mean if corporations were denied freedom of speech, the justice asked rhetorically.
“Where do we get all of our news? Where do we get all of our commentary on the news? The cable news networks are all owned by corporations—CNN, Fox, MSNBC, the broadcast networks are owned by corporations, major newspapers, New York Times, Wall Street Journal, Washington Post, you can go down the list, all owned by corporations.
“Popular entertainment is all provided by corporations. If corporations did not have free speech rights, and the government could regulate all of this as it wished—wow, who wants … that regime?”
The decision has “become kind of a lightning rod for everything that a lot of people don’t like about campaign finance, and about the way campaigns are conducted. And certainly, there’s a lot to dislike about the way campaigns are conducted. But all of that … cannot be attributable to Citizens United.”
Stare Decisis: Following Judicial Precedents
Alito also indicated that he shares Justice Clarence Thomas’s skepticism of the value of stare decisis, the longstanding legal doctrine of following judicial precedents, in deciding cases.
“Stare decisis was an important part of our legal system when the Constitution was adopted,” and was incorporated into the Constitution itself, he said.
Although it “remains important” today, it is “not an inexorable command.”
“We follow precedent most of the time, and what that can mean is that a court will apply a rule that is settled even though the court thinks the rule is probably wrong,” he said.
“In other fields, including legal scholarship, there is no precedent that is immune from questioning,” Alito added.