Justice at risk

MARY REICHARD, HOST: Up next: A Supreme Court justice speaks out.

The Wall Street Journal last week published highlights of an interview with Justice Samuel Alito. His comments made news because Justice Alito said he thinks he knows who leaked the Dobbs draft opinion last year.

The investigation conducted by the court marshal did not turn up the leaker’s identity. The report said a preponderance of evidence standard wasn’t met in order to do so.

MYRNA BROWN, HOST: In the months since the leak, conservative justices have been targeted for assassination. Democrats have attacked the legitimacy of the court. Media reports use innuendo to accuse conservative justices of unethical behavior.

Here to talk about it is Erin Hawley. She is senior counsel at Alliance Defending Freedom, a law professor at Regent University School of Law, and a contributor to WORLD opinions. She is a former Supreme Court law clerk to Chief Justice John Roberts.

REICHARD: Erin, good morning.

ERIN HAWLEY: Good morning. Thanks so much for having me.

REICHARD: Erin, why do you think Justice Alito is talking about this now?

HAWLEY: So, I think a couple of reasons. I think the primary one is that the justices are still facing threats. Just this week, there was a Senate hearing talking about ethics. And that had been spurred, I think, in no short measure, by this idea that the Democratic led Senate Judiciary Committee is really seeking to bring the Supreme Court justices to heel and to prevent them from continuing to issue decisions with which they disagree. So I really think that is why Justice Alito went on record here, just to say that, you know, the justices are not unaware of this political pressure, and yet they continue to do their jobs to interpret the Constitution and the statutes that are passed by Congress.

REICHARD: Some may wonder why he doesn’t just say who he thinks the culprit is?

HAWLEY: That's a good question. And I suspect it's because as a judge, he is in fact committed to the rule of law. But without the requisite level of proof he's not going to cast aspersions. I think this contrasts with the rhetoric that's thrown around against the justices. And really is a lesson even though that Justice Alito thinks he knows he is willing to wait, hopefully, for that evidence to someday come forward.

REICHARD: The media seems to have dropped this story. Could Justice Alito be trying to keep the matter alive and if so for what reasons?

HAWLEY: So, Justice Alito describes in detail the fear and physical danger that he and his colleagues were put in because of this leak. He also talks about the political intimidation currently occurring, really, the justices are under assault from from all quarters. And it's this idea that the leaked opinion matters, and that political pressure matters. And the justices are committed to doing their jobs and interpreting the law consistent with the law and not what elected officials or Senator Schumer might wish.

REICHARD: To clarify, the justices of the Supreme Court already abide by ethics rules, correct? Same as all judges do in lower courts?

HAWLEY: So, that's correct. So it's an interesting wrinkle, because the judiciary is by design an independent branch. So I personally think that if Congress were to declare an ethics code, that is something that might be constitutionally problematic, at least if it were directed to influence an outcome, as seems to be the sort of the case here, it's definitely to put pressure on these justices. And that pressure is absolutely unconstitutional. The Constitution designates the Article III branch, the judiciary, to be independent in order to protect our own liberties. The federal judges do have a code of conduct, and the Supreme Court justices voluntarily comply with their own sort of ethical guidelines.

REICHARD: It seems the Democrats intent on changing the Supreme Court are playing a long game here. What is that long game?

HAWLEY: You know, I hate to say this, but I really think it's changing the decisions of the Supreme Court. If you look at what has happened, just since President Trump appointed three justices who profess to be originalist, that means they're going to stick to the words of the Constitution. That means they're not going to update statutes with their own personal preferences. And since that time period, we have had legislation seeking to pack the court, with one, with more bodies, presumably those that will agree with the Democrats pushing this agenda. We've had repeated threats against justices after the Dobbs decision was leaked. And one really astounding fact is that even though there have been nearly continual protests at justices homes, the Biden administration has done nothing, even though this flagrantly violates federal law.

REICHARD: What else should our listeners understand about this entire situation?

HAWLEY: You know, one thing that struck me from reading Justice Alito's remarks as published by the Journal, is just the fact that he says that he still fears for his physical safety. Justice Alito is not a shrinking violet. He is not someone who would be inordinately scared of something. And yet he tells us that he has to be driven around in what amounts to an armored car, and that he cannot go out on his own without police escorts. That's something that should not happen in America. It's something that should not be allowed. We need to protect the justices and we especially need to protect the integrity and separation of powers with the Supreme Court.

REICHARD: Erin Hawley is an attorney and former Supreme Court law clerk. Erin, thank you!

HAWLEY: Thanks for having me.

Editor’s note: WORLD failed to disclose that Erin Hawley’s husband is a minority member of the Senate Judiciary Committee. We should have mentioned that in the interview.

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