Liberal Justices Slow-Walked Their Dobbs Dissents Despite Threats

Mollie Hemingway who writes for the Federalist and appears regularly on Fox News has a book coming out about Supreme Court Justice Samuel Alito. Alito’s most consequential decision during his time on the court is the Dobbs decision which overturned Roe. v. Wade back in 2022.

You probably remember that a draft of the Dobbs decision was leaked to Politico which published it in early May of that year. And the reaction was probably exactly what the still unidentified leaker hoped. People on the left went bananas.

On May 2, 2022, accomplice media outlet Politico published the 98-page draft of Dobbs. The unprecedented leak set off a wave of leftist protests and a literal firestorm of pro-abortion-led violence. Six days later — on Mother’s Day — a radical who was eventually arrested thanks to a half-eaten burrito firebombed the Madison headquarters of Wisconsin Family Action, a Christian pro-life, pro-family organization. 

“In the ensuing weeks, hundreds of pregnancy centers, churches, and pro-life organizations would be vandalized, some even set ablaze,” Hemingway wrote. Protesters also lined the streets and sidewalks outside the conservative justices’ homes.

We wrote a lot about the people protesting outside the justices’ homes when it was happening. The goal was obviously to pressure one or more of the conservatives to change their vote before the decision was formally issued. But there was also the possibility of violence. In fact, we almost saw it happen when Nicholas Roske traveled to Justice Kavanaugh’s house with a gun just over a month after the leaked decision was published.

And that wasn’t the only threat. The Federalist reported today that someone sent an envelope full of white powder to the Court.

“Alito’s small staff fielded a constant stream of vicious, threatening, and insulting phone calls,” Hemingway writes. “On June 27, one of the staff members opened an envelope, and powder came spilling out.”

The substance, initially feared to be anthrax, turned out to be dirt and a ground-up battery, but the staff was shaken up, Hemingway reported.

While the court’s conservatives were being moved out of their homes and receiving these threats, Hemingway reports that the court’s three liberal Justices seemed to be slow-walking their dissents.

“Alito asked the dissenters to make the completion of their dissents their priority because delay of the decision was a security threat,” Hemingway, The Federalist’s editor-in-chief writes in Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution.“Abortion supporters had an incentive to kill one or more of the justices in the majority to change the outcome.” 

The dissenters — Justices Stephen Breyer (counting down the days until his retirement at the end of the 2021-22 term ), Elena Kagan, and Sonia Sotomayor — “demurred,” Hemingway reports. Justice Neil Gorsuch asked the liberals when they expected to be wrapped up. They refused to provide a date.

Hemingway has said that the draft of the Dobbs decision was done sometime in February. That means by the time it had been leaked and published the liberals had already had more than 2 months to ponder it. But despite that and the plea from Justice Alito to move along the dissents, it took 53 more days for the decision to be issued.

Hemingway also recounts a scene in which, after Judge Alito asked the liberals to hurry up, Justice Kagan concerned then-Justice Breyer, concerned he might agree.

Hemingway wrote that “Kagan remonstrated with Breyer not to accommodate the majority, screaming so loudly, observers noted, that the ‘wall was shaking,’” according to Fox.

Despite an investigation the leaker was never identified. I still believe it was a liberal clerk who leaked it in hopes it would generate enough opposition to fracture the majority before it was released, though many on the left have argued otherwise. In any case, it did generate that kind of crazy and unhinged opposition. Fortunately, the outcome did not change.

I haven’t seen Hemingway’s interview with Fox News about the book but she also did an interview with Megyn Kelly in which she recounted the story.

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