Former Justice Breyer throws cold water on theory Dobbs leak came from a justice: ‘I’d be amazed’

Retired Supreme Court Justice Stephen Breyer said he’d be ‘amazed’ if a fellow justice leaked the court’s draft decision to overturn Roe v. Wade in 2022, which effectively ended the recognition of a constitutional right to abortion. 

‘Do you have a sense of what the motive of the leaker was?’ NBC’s Kristen Welker asked Breyer in an interview aired Sunday on ‘Meet the Press.’ 

Breyer shied away from answering directly, saying he does have theories, but that he was not willing to discuss them at length. Breyer, who retired in 2022, did say who he thought did not leak the draft opinion. 

‘I’d be amazed if it was a judge,’ he said. 

Breyer’s comments came amid an interview on his new book, ‘Reading the Constitution: Why I Chose Pragmatism, Not Textualism,’ which is critical of conservative justices for their decision to overturn Roe v. Wade. 

The Supreme Court issued a 6-3 ruling in Dobbs v. Jackson Women’s Health Organization in June 2022 to uphold a Mississippi law banning abortion after 15 weeks of pregnancy. The decision came just weeks after an unprecedented draft leak published by Politico showed Justice Samuel Alito’s majority opinion outlining the decision to effectively end the recognition of a constitutional right to abortion. 

Following the leak, churches and pro-life groups saw violent and destructive attacks, including a pro-life center in New York getting ‘firebombed’ by protesters, menacing graffiti on church properties across the nation, and a letter from a radical abortion group called ‘Jane’s Revenge’ declaring ‘open season’ on pro-lifers. Conservative justices also saw repeated protests outside their homes in response to the leak and ultimate decision. 

In previously aired portions of the interview, Breyer had described the leak as ‘unfortunate.’ 

‘It’s unfortunate,’ he said, with Welker following up and asking, ‘Were you angry?’

‘You try to avoid getting angry or that – you try in the job – you try to remain as calm, reasonable and serious as possible,’ he said.

‘I think it was unfortunate,’ he repeated. Supreme Court justices, as Breyer noted in his interview, are extremely careful about publicly speaking on issues that could land before them in court. Breyer appeared to continue with this tradition in his retirement, choosing his words carefully as Welker peppered him with questions on the leak and landmark decision. 

Breyer joined Justices Elena Kagan and Sonia Sotomayor in writing the dissent to the decision, and said in the interview he did not believe Roe should have been overturned. 

Welker continued asking if Breyer was hopeful the justices could reach a compromise regarding allowing abortion at 15 weeks ahead of the decision. 

‘Did you think that a compromise was possible before the leak around 15 weeks?’ Welker asked. 

‘I usually hope for compromise,’ Breyer responded. 

‘So you were hopeful there could be a compromise?’ she continued. 

‘You want to put words in my mouth,’ Breyer responded lightheartedly. ‘I’m careful what I say on this. Because I say our interests are different. I don’t want to make news. I’ve written what I thought. If you think there’s news in here or in the dissent, go right ahead. But, I don’t want to say something in addition.’

Breyer added that he ‘always’ thinks compromise is possible. 

The retired justice also shied away from answering whether he was ‘surprised’ an internal investigation into the leak did not identify a person as responsible. 

‘You want to ask that question to somebody who knows something about it. Ask the people who do internal investigations like that. They’re the people to ask and that they occur all over the government,’ he responded, adding that he was simply ‘disappointed, I was sorry about the leak.’

When asked if he foresees the Dobbs case one day being overturned, Breyer said, ‘It’s possible.’

‘Don’t know… It’s possible,’ he said. ‘But who knows?’

Breyer was nominated to the nation’s highest court by President Bill Clinton to fill former Justice Harry Blackmun’s seat in 1994. Blackmun wrote the court’s opinion on Roe v. Wade in 1973. 

Breyer resigned in 2022, with President Biden nominating Ketanji Brown Jackson as the successor. She was confirmed the same year. 

Fox News Digital’s Gabriel Hays contributed to this report.