Rev. Rob Schenck has written a letter to Chief Justice John Roberts informing him that Justice Samuel Alito leaked the outcome of a critical 2014 Supreme Court ruling that gifted corporations with religious rights and allowed them to deny health care to employees. The revelation of Alito’s leak in that case adds weight to the likelihood that he also leaked the draft text of the decision destroying the right to abortion under Roe v. Wade.
Schenck is an evangelical minister and author who was told in advance about the decision in Burwell v. Hobby Lobby after a friend of his dined with Alito. According to the letter, after learning of the pending ruling, Schenk was able to use the information to prepare material and statements in advance for when that ruling was announced. He even contacted the Green family, owners of Hobby Lobby, before the ruling was released, to let them know how it was going to go.
Rev. Schenck wants Chief Justice Roberts to keep that in mind. When searching for who leaked a draft version of Alito’s Dobbs v. Women’s Health Organization of Jackson opinion.
Considering there may be a severe penalty to be paid by whoever is responsible for the initial leak of the recent draft opinion, I thought this previous incident might bear some consideration by you and others involved in the process.
The leak of the draft decision in Dobbs was more than just a breach of Supreme Court tradition and security. By putting out a version of the opinion that was incredibly harsh, and which went far beyond the limits of what many had expected in the ruling, that draft put a stake in the ground that may have forced even conservative members of the Court to move faster than they had wanted in completely demolishing Roe and the entire concept of privacy rights.
Many have suspected that this is exactly why the leak was made in the first place; not to warn people about what was coming, but to put conservative members of the Court into a position where they either signed on, or were marked out as traitors to the anti-abortion cause. In short, there was a lot more go gain for Alito to have leaked the decision he wrote, than for any of the more moderate Justices on the Court to have made the text available before the justices made their final decisions.
As The New York Times reports, both Dobbs and the Hobby Lobby case were “triumphs for conservatives and the religious right.” Not only did the Dobbs decision shatter a right that had been in place for fifty years, and repudiate the ruling of that past Court, but the Burwell case elevated the religious rights of corporations above those of employees. It continued the wall of protection that corporate owners enjoy, but allowed their religious preferences to leak through that wall so that they could refuse to include, not just abortions, but even contractives in their health care plans. It was one of a string of rulings that have made corporations into ungovernable super-citizens.
Alito reportedly leaked the ruling on the Hobby Lobby case to a small group of supporters and religious rights advocates. However, the leak of the Dobbs opinion was made to the public, dropping like a bombshell into national politics when it was published in full by Politico. In September, Joan McCarter reported that the leak of the draft Dobbs opinion was still being investigated, but Justice Neil Gorsuch revealed that the outcome of that investigation might “not be made public.” Which would seem to limit the possible consequences of the leak to something less than a slap on the wrist. That there has been no announcement of findings seven months after the opinion was released makes it seem more likely that no public report is forthcoming.
By releasing his information concerning Alito and making public his letter to Roberts, Schenck, who was not supportive of the outcome in Dobbs, would seem to have returned at least some pressure for Roberts to treat the leak with the serious attention it deserves.
This wasn’t just a betrayal of the Court’s security, it was a deliberate effort to manipulate the outcome of a decision still in progress. If Alito actually used this leak to strongarm other justices into signing onto his extremist position … surely that’s something the public should know. And if the Court decides to hand down no punishment for this, that’s also something the public should know.
Another reminder of just how leaky the Roberts court has been.
We're now in the second week of election overtime and there are still plenty of major races yet to be decided—as well as tons more great news for Democrats to exult over on this week's episode of The Downballot. On the uncalled races front, co-hosts David Nir and David Beard dive into a pair of House races in California and several legislatures that could flip from red to blue, including the Pennsylvania House. Speaking of legislatures, the Davids also go deep on what the astonishing flips in Michigan will mean for progressives and particularly organized labor.