Tensions at Supreme Court Boiled Over After Dobbs Leak, New Book Claims

Justice Elena Kagan’s frustrations erupted into a heated confrontation with fellow liberal Justice Stephen Breyer following the unprecedented leak of the Supreme Court’s draft opinion in Dobbs v. Jackson Women’s Health Organization, according to a forthcoming book by conservative author and Fox News contributor Mollie Hemingway.

The book, titled “Alito” and set for release this week, details how Kagan allegedly screamed “so loudly” at Breyer that observers claimed “the wall was shaking.” The confrontation reportedly occurred in May 2022 behind closed doors after Justice Samuel Alito had requested his liberal colleagues expedite their dissenting opinions due to mounting security threats against the conservative justices.

According to Hemingway’s account, Breyer, who was nearing retirement, appeared most likely among the liberal bloc to accommodate Alito’s request. Despite his strong disagreement with the majority’s position on abortion rights, Breyer was known as “a gentleman and a friend to all on the Court.” Kagan allegedly confronted Breyer, demanding he not accommodate the majority’s timeline request.

The security concerns at the time were substantial and growing. Following the May 2 leak of the draft opinion to Politico, protesters regularly gathered outside conservative justices’ homes. Attorney General Merrick Garland ordered the U.S. Marshals Service to provide full-time security for all justices, though critics noted authorities did not arrest protesters despite a federal law prohibiting demonstrations near judges’ homes intended to influence court decisions.

The threats escalated beyond protests. In June 2022, Nicholas Roske (who now goes by Sophie) was arrested near Justice Brett Kavanaugh’s home armed with a pistol, knife, and burglary tools. Roske later pleaded guilty to attempting to murder a Supreme Court justice and received an eight-year prison sentence, which the Department of Justice is appealing as insufficient.

“As the protests continued, the Alitos were moved to a secure location,” Hemingway writes. “Justice Barrett had to put on a bulletproof vest in front of her children, most of whom still lived at home.”

Hemingway’s book, based on interviews with Supreme Court justices and dozens of others, portrays a Court deeply divided not just along ideological lines over abortion rights, but experiencing fractures within the liberal bloc itself. The author claims the majority opinion had been ready for months by mid-May, with only the dissents outstanding.

The tension reportedly peaked during a May 12 conference meeting attended only by the nine justices. According to Hemingway, “Alito asked the dissenters to make the completion of their dissents their priority because delay of the decision was a security threat.” The concern was that “abortion supporters had an incentive to kill one or more of the justices in the majority to change the outcome.”

When Justice Neil Gorsuch reportedly asked for a completion date for the dissents, the liberal justices “would not give a date,” according to the book.

The landmark Dobbs opinion, which overturned Roe v. Wade by a 5-4 vote and upheld Mississippi’s 15-week abortion ban by 6-3, was eventually released on June 24, 2022. Chief Justice John Roberts sided with the conservatives on upholding the Mississippi law but wrote separately to argue against dismantling Roe entirely.

A previous New York Times investigation had reported on internal efforts led by Roberts and Breyer to persuade one conservative justice – particularly targeting Justice Brett Kavanaugh – to change positions in the months before the final decision.

The leak of the draft opinion remains unsolved despite an internal investigation. Hemingway notes the profound impact the leak and subsequent ruling had beyond the Court: “In the ensuing weeks, hundreds of pregnancy centers, churches, and pro-life organizations would be vandalized, some even set ablaze.”

Three years after the Dobbs decision, the ruling continues to reverberate through American politics and society, fundamentally reshaping the legal landscape around reproductive rights while spotlighting the intense internal pressures facing the nation’s highest court during one of its most consequential decisions in decades.