Justice Elena Kagan allegedly screamed at fellow liberal Justice Stephen Breyer so forcefully that observers said the "wall was shaking," after Breyer showed willingness to speed up the liberal dissent in the Dobbs abortion case while conservative justices faced death threats and protests at their homes, Fox News Digital reported, citing claims in a forthcoming book by conservative author Mollie Hemingway.
The confrontation, described in Hemingway's book "Alito," reportedly took place behind closed doors after a May 12, 2022, conference meeting, just ten days after Politico published a leaked draft of Justice Samuel Alito's majority opinion that would overturn Roe v. Wade. The leak had already triggered a security crisis for the five conservative justices expected to be in the majority.
Hemingway, a Fox News contributor who said she based the book on interviews with most of the justices and dozens of others, paints a picture of a Court under siege, and a liberal wing that, in her telling, refused to act with urgency even as the physical safety of their colleagues deteriorated by the day.
The book's account centers on Alito's appeal to the Court's liberal dissenters. He asked them to prioritize finishing their dissent because, as Hemingway wrote, "delay of the decision was a security threat." The logic was straightforward: since Supreme Court decisions do not take effect until officially issued from the bench, the death of a majority justice before the ruling came down could alter the outcome.
The dissenters declined. Justice Neil Gorsuch then spoke up, asking for a date by which they might be done. They would not give one.
That refusal is the backdrop for what Hemingway describes as Kagan's eruption at Breyer. The Obama appointee, she wrote, "remonstrated with Breyer not to accommodate the majority." Breyer, a Clinton appointee who was set to retire in June 2022, had apparently been the liberal bloc's most sympathetic ear on the question of timing.
Hemingway described Breyer in notably warm terms:
"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.'"
The book does not identify which observers reported the wall shaking. Fox News Digital said it reached out to Breyer's representatives and the Supreme Court's press office for comment.
The stakes of the delay were not abstract. After Politico published the draft opinion on May 2, protesters began showing up at the homes of conservative justices. Attorney General Merrick Garland ordered the U.S. Marshals Service to provide full-time security for all nine justices shortly after the leak. But the article notes that authorities did not arrest protesters despite a federal law that prohibits "picketing or parading" near a federal judge's home to influence a court decision.
The pattern of eroding decorum and institutional norms at the Supreme Court did not stop at angry words inside the building. The threats moved from rhetorical to operational.
In June 2022, Nicholas Roske was arrested near Justice Brett Kavanaugh's home armed with a pistol, a knife, and burglary tools. Roske later pleaded guilty to attempting to murder a Supreme Court justice and received an eight-year prison sentence. The Department of Justice is appealing that sentence, apparently viewing it as too lenient.
Hemingway's book also describes the personal toll on other justices in the majority. She wrote that the Alitos were moved to a secure location as protests continued. Justice Amy Coney Barrett, she wrote, "had to put on a bulletproof vest in front of her children, most of whom still lived at home."
That detail alone, a mother strapping on body armor in her own kitchen while her kids watch, says more about the post-leak environment than any political commentary could.
The violence extended well beyond the justices themselves. Hemingway wrote that "in the ensuing weeks, hundreds of pregnancy centers, churches, and pro-life organizations would be vandalized, some even set ablaze." The wave of attacks on pro-life institutions in the summer of 2022 was one of the most widespread campaigns of political intimidation in recent memory, and it drew relatively muted enforcement attention at the time.
Hemingway framed the security situation in stark terms:
"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."
She went further, writing that "abortion supporters had an incentive to kill one or more of the justices in the majority to change the outcome." That framing is Hemingway's own, but the Roske arrest near Kavanaugh's home lends it a concrete and chilling factual basis.
The identity of whoever leaked the Dobbs draft remains unknown to this day, a fact that itself speaks to the limits of institutional accountability at the nation's highest court. The leak was described as a "stunning breach of the high court's rules," and yet no one has been publicly held responsible.
Hemingway's book is not the only account of behind-the-scenes jockeying during the Dobbs deliberations. A New York Times investigative report previously detailed an internal effort spearheaded by Chief Justice John Roberts and Breyer to flip at least one conservative justice, with Kavanaugh apparently the target, before the final decision came down. Roberts was described as the lone conservative to object to fully dismantling Roe.
That effort failed. On June 24, 2022, the Court released the landmark opinion, overturning Roe v. Wade on a 5-4 vote and upholding Mississippi's law banning most abortions after 15 weeks of pregnancy on a 6-3 vote.
The friction between liberal justices revealed in Hemingway's account fits a pattern that has surfaced repeatedly in recent terms. Kagan herself publicly rebuked fellow liberal Justice Ketanji Brown Jackson in a footnote over a free speech ruling, suggesting that disagreements within the left wing of the Court are not limited to private hallways.
And the broader political environment around the Court has only grown more charged. Democratic leaders have rallied donors to preemptively block future conservative nominees, treating the Court less as an independent institution and more as a political battleground to be won or lost.
Hemingway told Fox News Digital she had spoken with most of the justices in the course of writing the book. That level of access, if accurate, makes the claims harder to dismiss as secondhand gossip. But the book's sourcing on the specific Kagan-Breyer confrontation, attributed to unnamed "observers", leaves room for dispute over the precise details.
Neither Kagan nor Breyer has publicly responded to the account. The Supreme Court's press office has not commented.
The recent pattern of liberal justices drawing scrutiny for their conduct, from Sotomayor's personal remarks about Kavanaugh to Kagan's alleged outburst at Breyer, raises a question the legal establishment prefers to avoid: whether the Court's liberal wing has allowed political passions to override the collegial norms that once made the institution function.
The book is set for release Tuesday. Its claims will be debated. But the underlying facts, the leak, the threats, the arrest, the arson, the bulletproof vest, the refusal to give a date, are not in dispute. They are the record of a Court that was under physical threat while some of its own members, if Hemingway's account holds, treated the timeline as a political tool rather than a safety imperative.
When your colleague's life is at risk and your response is to scream at the one person willing to help, the problem is not legal philosophy. It is priorities.
