Published June 8, 2022
A couple of thoughts on the horrific attempt to assassinate Justice Kavanaugh:
1. From the moment that Politico published the leaked draft of Justice Alito’s majority opinion in Dobbs, there was an obvious risk that someone seeking to thwart the overruling of Roe v. Wade and Planned Parenthood v. Casey might try to assassinate one or more of the five justices thought to be in the majority. The leaker’s creation of that risk is one of many reasons that the liberal-leaker theory has struck me as vastly more plausible than the conservative-leaker theory: For a liberal leaker, the risk of assassination is a feature, not a bug.
That’s why I immediately recommended three options for the Court to issue the Dobbs ruling forthwith, including this one:
A second and cleaner option might be for the Chief to inform all of the justices that they need to have their votes and opinions ready to go by an imminent date certain—say, next Monday. Dobbs was argued way back on December 1, the draft majority opinion was evidently circulated in early February, and the issues are straightforward, so everyone has had plenty of time to draft opinions.
Five weeks have passed since the leak. On the day after the leak, the Chief Justice declared, “The work of the Court will not be affected in any way.” But that declaration was seemingly blind to the reality that an assassination would (pardon the understatement) dramatically affect the work of the Court. Nonetheless, it appears that the Court has taken no steps to accelerate the issuance of its decision in Dobbs. The risk of an assassination will therefore persist—and surely intensify—until the Dobbs ruling is announced. (To be sure, some risk will continue after Dobbs is announced, but the incentive will be far weaker.)
On what legitimate theory can the dissenting justices continue to dawdle?
2. Let’s not forget Senate Democratic leader Chuck Schumer’s appalling statements at a pro-abortion rally outside the Supreme Court two years ago:
I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.
Schumer stated the following day that he “should not have used [those] words” and that they “didn’t come out the way I intended to.” But it’s especially incumbent on him to make a much more forceful denunciation of violence against the justices.
Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.
Image: Wolfkann, Flickr