It’s been a year and a day since Politico published a draft Supreme Court opinion in the Dobbs v. Jackson Women’s Health Organization case that reversed the landmark 1973 Roe vs. Wade decision that established a constitutional right to abortion. The bombshell leak led to threats and protests against the court’s conservative justices that further intensified after the final decision was released in June 2022 and linger to this day.
The incident is widely considered the worst breach in the court’s history, and yet we still don’t know you did it. In January, the Supreme Court issued an investigative report that stated it has “been unable to identify a person responsible by a preponderance of the evidence,” though it was not likely the result of a computer hack.
Late last week, Justice Samuel Alito was quoted in an op-ed in The Wall Street Journal in which he opined about the source of the leak and the safety concerns he and his colleagues continue to face. The comments came on the heels of a whistleblower report that claimed United States Marshals had been discouraged from arresting protesters outside the justices’ homes – a clear violation of the law.
On Wednesday’s show, Megyn was joined by Sen. Mike Lee (R-UT) to discuss the latest on the Supreme Court leaker, the threats against the justices, and what – if anything – can be done about it.
Justice Alito’s ‘Emotionally Charged’ Op-Ed
Justice Alito wrote the majority opinion in the Dobbs case and was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts agreed with the judgment upholding the Mississippi law that banned most abortion procedures after the first 15 weeks of pregnancy, but he did not join the majority in overturning Roe v. Wade and Planned Parenthood v. Casey (1992).
In the WSJ op-ed, Justice Alito shed new light on what happened in the aftermath of the leak. He noted that it “created an atmosphere of suspicion and distrust. We worked through it, and last year we got our work done… but it was damaging.”
He believes Supreme Court Marshal Gail Curley “did a good job with the resources that were available to her” and agrees that there was insufficient evidence to publicly accuse a leaker. But he has his own theory. “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,” Justice Alito shared.
He does, however, have clarity on the motive. “It was a part of an effort to prevent the Dobbs draft… from becoming the decision of the court,” he told WSJ. “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.”
Justice Alito was candid when speaking about the threats he and those thought to be in the majority faced in the aftermath of the leak. Calling them “targets of assassination,” he said “it was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.” The danger remains, but the justice says he feels safe because he’s “driven around in basically a tank” and “not really supposed to go anyplace… without the tank and members of the police force.”
Megyn found the article noteworthy for many reasons, not least of which was the honesty of it. “I’ve never seen a justice write something like this,” she said. “He seemed ticked off, and he seemed – I don’t want to say emotional – but definitely it was emotionally charged.”
Sen. Lee agreed. “It’s an emotionally charged thing when you think someone is either trying to have you killed or trying to have you at least believe and fear that you might be killed if you go through with a particular Supreme Court opinion,” he shared. “He has every right to feel strongly about this, and we all should because this is a full-blown attack on the Supreme Court itself, on the institution.”
Can the Supreme Court Leaker Be Caught?
When the SCOTUS investigation was released, Megyn was fairly certain that any sound investigation would have been able to find the leaker. Sen. Lee agreed and said Justice Alito is likely not alone in having a good idea of who is responsible for the breach. “I think that anyone who knew the law clerks, and the justices, the other court personnel at the time, or even had access to interview each and every one of them could reasonably have figured it out in a relatively short order,” he said. “For whatever reason, the Supreme Court Marshal wasn’t given enough resources to do that the first time around.”
Megyn asked if, at this point in the process, “there is anything left to be done on unveiling who was behind this,” and Sen. Lee seemed optimistic that there is. “All that needs to happen is that the marshal of the U.S. Supreme Court needs to be authorized to conduct a new investigation and enlist the help of deputized members of the U.S. Marshals Service to help conduct that investigation,” he explained. “They need to interview each and every law clerk and any other Supreme Court personnel who had close access to the circulating draft opinions.” There should also be a review of phone records and documents, he added.
Sen. Lee said he is “quite confident” this process would successfully identify the leaker.
Whistleblower Report on SCOTUS Protests
Justice Alito spoke to the threats he and his fellow conservative justices have faced since the leak of the Dobbs decision. Sen. Lee said he remembers exactly where he was when he heard about the breach and that everyone “understood immediately” the ramifications. “It was of its very nature the kind of thing that could threaten them, intimidate them, and subject them to a risk of physical violence,” he shared. “It’s unacceptable that, over a year later, we still don’t know who it was.”
What we are learning is that the laws that exist to protect judges and justices in this country were not properly enforced. According to 18 U.S.C. §1507, it is illegal to picket or parade near a residence occupied by a judge with the intent of “interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty.”
A whistleblower report brought to light by Sen. Katie Britt (R-AL) seems to show that Attorney General Merrick Garland and the Department of Justice failed to enforce the federal law as it related to the SCOTUS justices. “Based on these documents that were unearthed by a whistleblower… we discovered that the U.S. Marshals Service has issued these training guidelines saying that when you’re at the home of a Supreme Court justice, don’t make arrests under section 1507 without prior approval from the U.S. attorney’s office,” Sen. Lee explained. “This makes it all but impossible that it’s going to occur.”
As Megyn noted, Attorney General Garland was turning a blind eye. “[He] was essentially telling these cops to stand down,” she said. “Don’t arrest the protesters even though if you protest as an attempt to interfere with the carrying out of justice, with the conclusion of an opinion, you are breaking the law.”
But that’s not all. “Then they added additional elements onto the crime – elements that do not exist in the statute  – that there have to be criminal threats, there has to be some indication of violence under the circumstances.”
It should come as no surprise then, that not a single person has been arrested under section 1507 since the leak last May. “We’ve had protests at their homes, they followed them home, to their favorite vacation spots, in some cases to their churches,” Sen. Lee said. “That’s absolutely unconscionable, and it’s unforgivable.”
You can check out Megyn’s full interview with Sen. Lee by tuning in to episode 542 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.