As the October 2026 Term opened, Justice Samuel Alito released a round of interviews promoting his new book, So Ordered. In sessions with CBS News’s Jan Crawford and Fox News’s Shannon Bream, he described what it costs to sit on the Court after the 2022 Dobbs leak. No ruling issued and no order was announced. What the interviews supplied is a candid account of the threat environment around the Justices, and it bears directly on how the Court is likely to approach the right to keep and bear arms.
What Justice Alito Described
Justice Alito told Crawford that Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), required courage from every Justice in the majority, and that decisions of that kind can end old friendships. He characterized the physical threats and harassment now directed at judges as “something new in our society,” and as a danger to the courts and to others in public life.
To Bream, he said that the leak of the draft opinion, which he never imagined would happen, “very predictably made the five of us in the majority targets for assassination.” He added that it nearly cost the life of his colleague Justice Brett Kavanaugh. The five were Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts concurred only in the judgment. As Bream noted, no official finding has ever identified who leaked the draft.
Intimidation Has Already Failed
My read is that the conservative majority cannot be frightened into a different outcome, and the record is on my side. Dobbs was decided on June 24, 2022. The day before, the Court decided New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). Justice Barrett joined the majority opinions in both. Anyone who expects threatened Justices to flinch in the next case misunderstands how they behaved in the last one.
A case that reaches the Supreme Court is a close one, and half the country will be dissatisfied with any outcome. I disagree with individual Justices from time to time. Disagreement is lawful; threats and harassment are not. A court that yields to threats has ceased to be a court.
The Armed Security That Informs the Bench
The Justices are protected by the United States Marshals Service and the Supreme Court Police, around the clock. They need that protection, and they should have it. My point is that reliance on armed security is not abstract for them. A Justice who lives under constant armed guard understands better than most why the citizen who has no such guard may need the means to defend himself. Justice Thomas, joined by Justice Gorsuch, said as much in dissenting from the denial of certiorari in Peruta v. California, No. 16-894 (June 26, 2017):
“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.”
Peruta arose from the en banc Ninth Circuit’s holding, at 824 F.3d 919 (9th Cir. 2016), that the Second Amendment does not protect a right to carry concealed in public. Five years later, Bruen rejected the interest-balancing approach on which decisions of that kind rested. The dissent’s premise has since been vindicated: the Second Amendment protects the person who walks the street without a motorcade.
What This Means for the AR-15 Cases
The consolidated cases Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566, will be argued on December 2, 2026. My prediction is that the Court will rule for the petitioners, and that it has largely settled the core question already. Wolford v. Lopez reads to me as though the analytical groundwork for an arms-ban case, the method of Heller, was set down in advance, and I regard that as an inference rather than a known fact. If I am right, Justice Alito, who wrote Wolford and the plurality opinion in McDonald, is a leading candidate to write the majority opinion, which I expect around June 2027. The scope of the holding, and what the opinion says beyond its core, remain open questions.
The interviews show a bench that has been targeted for its votes and has not changed them. They also show Justices with every reason to understand, from their own daily circumstances, why the right to bear arms belongs to all Americans and not only to those who can afford guards.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.