Samuel Alito had a plan to restore the Supreme Court’s teetering authority. It was a rather strange plan. It involved granting a friendly interview to James Taranto and David B. Rivkin, Jr., two overtly partisan Republican pundits.
In the interview, Alito insisted that even though the Supreme Court failed to identify the source of the leaked Dobbs draft, he knew who the guilty party was and was free to insinuate it publicly:
“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,” he says. He’s certain about the motive: “It was a 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.”
In response to speculation that the leak came from right-wing members seeking to lock the majority in to its draft decision, and to prevent John Roberts or Brett Kavanaugh from wavering, Alito is characteristically dismissive:
“That’s infuriating to me. Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”
Given that the justices have strong levels of physical protection (“I don’t feel physically unsafe, because we now have a lot of protection,” Alito concedes) and that the Court did rule exactly as the leaked draft suggested, the theory that conservatives leaked the draft doesn’t seem completely implausible. But Alito is declaring the matter settled, refuses to share the evidence, and says he is enraged that anybody would doubt him.
Having issued this kangaroo-court ruling on the leak, Alito proceeds to disparage anybody who questions the legitimacy of the Court’s power or decision-making.
Justice Alito says “this type of concerted attack on the court and on individual justices” is “new during my lifetime … We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.” Instead, “if anything, they’ve participated to some degree in these attacks” …
Those who throw the mud then disparage the justices for being dirty. “We’re being bombarded with this,” Justice Alito says, “and then those who are attacking us say, ‘Look how unpopular they are. Look how low their approval rating has sunk.’ Well, yeah, what do you expect when you’re — day in and day out, ‘They’re illegitimate. They’re engaging in all sorts of unethical conduct. They’re doing this, they’re doing that’?”
It “undermines confidence in the government,” Justice Alito says. “It’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution. You could say the same thing about Congress and the president … When you say that they’re illegitimate, any of the three branches of government, you’re really striking at something that’s essential to self-government.”
And then Alito insists the precedents he overruled were “egregiously wrong.” In summation, the Court’s rulings must be considered fair and above politics, except the ones the Court completely made up, which coincidentally offend Alito’s political commitments.
If I were upset that people questioned the dispassionate nature of my legal rulings, I probably wouldn’t make those complaints immediately after throwing around evidence-free charges that my enemies committed a crime. I would also probably avoid describing my state of mind in forming these judgments with phrases like “infuriating to me.” But the beauty of a lifetime appointment is that, like observing financial-ethics requirements, sound judgment is purely optional.