(LifeSiteNews) – 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.
Alito also critiqued Justice Elena Kagan’s Dobbs dissent, in which she stated that overturning Roe undermined the court’s legitimacy, playing into progressive talking points. “To say that the court is exhibiting a lack of integrity is something quite different. That goes to character, not to a disagreement with the result or the reasoning. It goes to character,” Alito said. “Someone also crosses an important line when they say that the court is acting in a way that is illegitimate. I don’t think anybody in a position of authority should make that claim lightly. That’s not just ordinary criticism. That’s something very different.”
Indeed, the overturn of Roe indicates the illegitimacy of the court to progressives because they believe opposition to abortion to be fundamentally illegitimate, along with the views of those who believe pre-born children in the womb are entitled to protection under law. Any court willing to extend those protections is, in their minds, illegitimate. Legitimacy can only be restored by giving progressives their preferred outcomes.
Alito noted that although expanding the court is up to Congress, Democrats should be careful. “If Congress were to change the size of the court and the public perceived that the reason for changing the size of the court was to influence decisions in future cases,” Alito posed, “what would that do to the public perception of our independence and our legitimacy?”
