By Jonathon Van Maren
Many Democrats have made no secret of the fact that they would love to pack the Supreme Court, expanding the number of justices to ensure a permanent liberal majority. That is the reason that progressive talking heads so often question the “legitimacy” of the court: not because any of the justices were illegitimately nominated or appointed, but because the decisions being handed down – most notably the overturn of Roe v. Wade – are considered illegitimate by the Left.
That is the reason for headlines like this one in The Guardian: “Samuel Alito assured Ted Kennedy in 2005 of respect for Roe, diary reveals.” Kennedy’s biographer John A. Farrell has published some excerpts from the senator’s diary, including a recounting of a 2005 conversation with Samuel Alito – the justice who penned June’s Dobbs decision – in which Alito states that he is “a believer in precedent” and that a “right to privacy” is “settled.” In Dobbs, of course, Alito wrote that the right to privacy does not extend to feticide.
This story is a nothingburger – Alito was a known pro-lifer and Kennedy voted against his confirmation. But the purpose of it is to cultivate the idea that the justices who voted to overturn Roe lied to get confirmed for that explicit purpose. Every justice who has affirmed that Roe is precedent – which it clearly was, until it was overturned – has been essentially accused of first saying they would vote to uphold that precedent before turning around and doing precisely the opposite. That isn’t true, of course. But to claim that the justices are bald-faced liars is to undermine the court and to open up an opportunity to change the rules of the game to ensure permanent progressive victory.
In his recent remarks at the Heritage Foundation, Alito said as much. He noted that the leak of his draft opinion on Dobbs made him and his colleagues “targets for assassination,” and observed that the leak “gave people a rational reason to think they could prevent that from happening by killing one of us.” Indeed, a would-be assassin from California was arrested near the home of Justice Brett Kavanaugh, with authorities confirming that the man wanted to murder Kavanaugh over the leaked draft of Roe’s overturn. It is notable that despite this unprecedented leak, the leaker has never been found.