Just one month ago, Supreme Court Justice Samuel Alito spoke publicly for the first time about the leak of his draft opinion in Dobbs v. Jackson Women’s Health Organization overturning abortion rights. The leak, he said, was a “grave betrayal” and “shock,” which made the individual justices in the conservative majority “targets for assassination” by activists trying to keep the final decision “from happening by killing one of us.”
At the time and since, speculation has been rampant that Alito himself leaked the draft as a way of pinning down his conservative colleagues who were wavering on the harsh, complete reversal of a half-century of precedence. Given the bombshell reporting out this weekend from The New York Times, that speculation seems to have proved out. The allegations in the Times come from a Rev. Rob Schenck, a former and prominent forced birth activist who alleges that Alito leaked a previous decision he wrote in Burwell v. Hobby Lobby, which gave corporations the religious right to refuse reproductive health coverage to employees.
Schenck had created a powerful network of rich religious zealots, and used them to befriend and influence conservative justices. It was one of these couples who had befriended Alito to whom Schenck says Alito leaked the decision. Schenck provided this information to Chief Justice John Roberts in a letter he also provided to the Times. The leak and the hypocrisy of Alito is one big, glaring ethics issue. The deliberations of the Court are supposed to be sacrosanct, just as the justices are expected to separate themselves from political influence.
Alito, of course, denies the whole story, admitting to a “casual and purely social relationship” with Wright, but saying the allegation that he revealed the Hobby Lobby outcome “completely false.”
That’s a piece of the much larger issue, that the Court’s conservatives are following a blatantly political course but also are acting as political actors, open to lobbying and outside influence. Schenk proved this. He obtained a building just across the street from the Court, he recruited like-minded forced birth mucky-mucks to hang around at receptions and events for the Court—the favorite target being the Supreme Court Historical Society—and become part of the justices’ inner circles.
It worked with Justices Antonin Scalia, Alito, and Clarence Thomas. The Wrights, the couple who got the Hobby Lobby leak, become part of the social circle for all three, sharing meals with them and their families, hosting the Alitos during vacations at their Jackson Hole home, and getting seats in the Court chamber to watch hearings.
Meanwhile, the Court is holding itself above the fray, insisting that they’ve checked the rules for all these activities and deemed themselves cleared. Alito, of course, denies the whole story, admitting to a “casual and purely social relationship” with Wright, but saying the allegation that he revealed the Hobby Lobby outcome “completely false.”
That’s not good enough for congressional Democrats. Sen. Dick Durbin, chair of the Judiciary Committee, released a statement announcing the Committee “is reviewing these serious allegations, which highlight once again the inexcusable ‘Supreme Court loophole’ in federal judicial ethics rules.” He called for congress to pass the Supreme Court Ethics Act which would require the Court to adopt a code of ethics.
Sen. Sheldon Whitehouse (D-RI) and Rep. Hank Johnson (D-GA), who chair Senate and House courts subcommittees, wrote to Supreme Court Chief Justice John Roberts requesting he investigate this potential leak and suggesting that if he doesn’t, they will. The pair previously wrote to Roberts following reports of Schenck’s Faith and Action group in Politico and Rolling Stone about the intensive lobbying efforts his group undertook to sway the justices.
A Supreme Court ethics attorney responded to the pair, outlining the Court’s policies and practices but not answering their specific concerns. “A response pointing out the existence of rules is not responsive to questions about whether those rules were broken,” Whitehouse and Johnson wrote in their new letter.
“It seems that the underlying issue is the absence of a formal facility for complaint or investigation into possible ethics or reporting violations. …. If the Court, as your letter suggests, is not willing to undertake fact-finding inquiries into possible ethics violations that leaves Congress as the only forum.”
In a statement, the pair called the new report “another black mark on the Supreme Court’s increasingly marred ethical record” and said they “intend to get to the bottom of these serious allegations.” They joined with Durbin in calling for Congress to force the Court into adopting a code of ethics.
That’s the minimum that should be done. The judiciary committees should be undertaking full investigations into Alito’s ties to this group and this potential leak. Thomas should likewise be subject to investigation for his conflicts of interest around Jan. 6. Congressional Democrats should use the next two years to build the case for serious Court reforms including—but not limited to—court expansion. Nothing can pass with a Republican House, but they can lay the groundwork and start making the case for future reform. It might even be enough of a threat to restrain the Court, just a little.
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