WASHINGTON — Supreme Court Justice Samuel Alito strongly defended the ruling that overturned Roe v. Wade, which had established a nationwide constitutional right to abortion, while also recalling the death threats directed at the justices who supported the decision.
Alito wrote the majority opinion in the 2022 case Dobbs v. Jackson Women’s Health Organization. In a new interview, he described the ruling as a straightforward example of applying the Constitution’s original meaning rather than allowing personal views to shape its interpretation.
“I know this is very controversial, but I thought it was perfectly clear that the reference to liberty in the 14th Amendment adopted in 1868 did not mean that there is a constitutional right to abortion,” Alito told “Fox News Sunday” in a prerecorded interview.
“In 1868, abortion was illegal in most of the states,” he said. “And so it is unthinkable that those states would ratify an amendment that rendered their own laws unconstitutional and then continue to have those laws on the books for decades after that.”
“I think there, originalism provided a clear answer.”
Alito is considered one of the Supreme Court’s most conservative members, alongside Justice Clarence Thomas. He is also a leading advocate of originalism, a judicial philosophy that emphasizes constitutional text and how its language would have been understood when adopted.
He has previously called himself a “practical originalist.” More recently, however, he has used the term “working judicial originalist” to signal his concern that academic versions of originalism can become overly rigid.
The associate justice spoke with several media outlets before the Supreme Court’s new term began Monday. The appearances were part of a promotional tour for his book, “So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country.”
In Dobbs, Alito challenged the line of legal reasoning that began with Roe v. Wade. That earlier ruling held that the Fourteenth Amendment protected a fundamental privacy right that included a woman’s ability to obtain an abortion nationwide.
Alito argued that the Constitution contains no express reference to abortion or a general right to privacy. By overturning Roe, his opinion returned authority over abortion policy to Congress and the individual states.
The decision’s final release was preceded by an extraordinary breach: A draft of the opinion was leaked to Politico in May 2022, several weeks before the Supreme Court officially issued its ruling.
The leak and the expected decision were followed by a wave of threats against the justices who made up the majority.
“That was totally unprecedented in the history of the country,” Alito said of the leak. “It was a grave breach of the trust that everybody who worked in this building had before that point.”
“And it very predictably made the five of us in the majority targets for assassination and nearly resulted in the assassination of my colleague Brett Kavanaugh.”
In June 2022, Nicholas Roske traveled to the home of Justice Brett Kavanaugh in Maryland carrying weapons and other equipment, according to authorities. He was arrested before carrying out what prosecutors described as an apparent assassination attempt.
Justice Amy Coney Barrett later said the security threat became so serious that she had to explain to her children why she was wearing a bulletproof vest after the Dobbs draft was leaked.
Alito also said he has a theory about who disclosed the draft opinion, but added that the evidence currently available is not strong enough to identify the person responsible.
During the interview, the associate justice also expressed concern about what he sees as the Supreme Court’s growing politicization.
“I do think there is a concerted effort to intimidate the court and justices on the court, try to influence us to decide cases differently from the way in which we have been deciding them,” he said.
Alito also described the sweeping restrictions imposed during the COVID-19 pandemic as “a stress test of our constitutional rights.”
“And one of the things that, unfortunately, it disclosed was that many people were willing to downgrade certain constitutional rights, the right to freedom of speech and the right to the free exercise of religion in particular,” he lamented.
He gave an example of how casinos in Las Vegas allowed people to go without masks, while houses of worship had severe limits on attendance.
