FIRST ON FOX: Justice Elena Kagan’s frustrations boiled over in the aftermath of the Dobbs opinion leak in 2022, leading her to allegedly scream “so loudly” at Justice Stephen Breyer that the “wall was shaking,” observers said, according to a new book.
Conservative author and Fox News contributor Mollie Hemingway’s forthcoming book “Alito,” reviewed by Fox News Digital and set for release Tuesday, details the incident and other heated moments surrounding the leak, which spurred waves of protests and death threats against the five conservative justices expected to overturn Roe that year.
The Supreme Court’s deep division on abortion was clear at the time, but the book reveals that a typically unified liberal bloc was also fractured.
Hemingway wrote that Kagan, an Obama appointee, angrily confronted Breyer, a Clinton appointee, in May 2022 behind closed doors after at least one justice, Samuel Alito, had asked his liberal colleagues to speed up writing their dissent because of security threats. Breyer was most likely to agree to Alito’s request, Hemingway wrote.
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“Though he had not said he would accommodate the justices whose lives were at risk by getting out a dissent, [Breyer] was the member of the liberal bloc most willing to do so,” Hemingway wrote. “Fiercely liberal in his jurisprudence and in strong disagreement with the majority decision, he nevertheless was a gentleman and a friend to all on the Court. Kagan remonstrated with Breyer not to accommodate the majority, screaming so loudly, observers noted, that the ‘wall was shaking.’”
Fox News Digital reached out to representatives for Breyer as well as the Supreme Court’s press office for comment on the book.
The security threats at the time were severe, as protesters who supported access to abortion frequently showed up at conservative justices’ homes. Shortly after the leak, Attorney General Merrick Garland ordered the U.S. Marshals Service to provide full-time security for all the justices, but he drew criticism because authorities did not arrest protesters despite a law that prohibits “picketing or parading” near a federal judge’s home to influence a court decision.
In June 2022, before the Supreme Court issued its decision, a suspect armed with a pistol, knife and burglary tools was arrested near Justice Brett Kavanaugh’s home. Nicholas Roske, who now goes by Sophie, later pleaded guilty to attempting to murder a Supreme Court justice and received a controversial sentence of eight years in prison, which the Department of Justice is appealing.
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“As the protests continued, the Alitos were moved to a secure location,” Hemingway wrote. “Justice Barrett had to put on a bulletproof vest in front of her children, most of whom still lived at home.”
Kagan’s contentious interaction with Breyer, who was set to retire in June 2022, came after a May 12 conference meeting, according to the book. Only the nine justices attend conference meetings, which are held periodically. Hemingway, who wrote the book based on interviews with the justices and dozens of others, said at this point the majority opinion had been ready for months and only the dissents were outstanding.
Hemingway did not name the justices she interviewed because they spoke on background, but she told Fox News Digital she spoke with most of them.
“Alito asked the dissenters to make the completion of their dissents their priority because delay of the decision was a security threat,” Hemingway wrote. “Abortion supporters had an incentive to kill one or more of the justices in the majority to change the outcome. The dissenters demurred. [Justice Neil] Gorsuch spoke up, asking for a date by which they might be done. They would not give a date.”
The landmark opinion, overturning Roe 5-4 and upholding a Mississippi law 6-3 that banned most abortions after 15 weeks of pregnancy, was released June 24, 2022. An investigative report by the New York Times detailed an internal effort spearheaded by Chief Justice John Roberts, the lone conservative to object to dismantling Roe, and Breyer to flip one conservative in the months leading up to the decision. Breyer had been eyeing Justice Brett Kavanaugh, the outlet reported.
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Hemingway’s book sheds new light on those internal deliberations, which came against the backdrop of heightened polarization over the decades-long fight over Roe.
“Everyone knew that the leak posed a serious security risk for justices. Since decisions do not take effect until issued officially from the bench, the death of a justice before then could alter the result. The threat of assassination increased dramatically.”
The Supreme Court’s draft opinion, authored by Alito, was published May 2 in Politico, representing a stunning breach of the high court’s rules. The leaker’s identity remains unknown to this day.
“In the ensuing weeks, hundreds of pregnancy centers, churches, and pro-life organizations would be vandalized, some even set ablaze,” Hemingway wrote of the fallout.
