The U.S. Supreme Court’s lawyer has just proven precisely why the court needs to be forced to adopt a code of ethics, the code by which every other federal judge must abide. In a letter to a pair of lawmakers, Supreme Court legal counsel Ethan Torrey tersely dismissed the serious questions the congressmen surfaced in two letters regarding the relationship of Justice Samuel Alito to the evangelical conservative Christian group Faith & Action.
A whistleblower from the group, Rev. Rob Schenck (who has renounced his decades of forced birth advocacy), alleged in a letter to Chief Justice John Roberts that Alito had leaked the decision in the Hobby Lobby case, which ruled that business corporations can be “religious” and have exemption from the law requiring they cover employees’ birth control back in 2014 to members of his organization. Schenck believed his knowledge of that leak could help in the investigation into who leaked a draft version of Alito’s Dobbs v. Women’s Health Organization of Jackson opinion ending federal abortion rights protections. Schenck’s letter to Roberts made its way to The New York Times.
Following the blockbuster story of that leak, Sen. Sheldon Whitehouse (D-RI) and Rep. Hank Johnson (D-GA), who chair Senate and House courts subcommittees, also wrote to Roberts asking him to investigate the alleged Hobby Lobby leak and suggesting that if he doesn’t, they will. The pair had already asked Roberts following reports of Schenck’s Faith & Action group in Politico and Rolling Stone. Those stories delved into the network of wealthy religious zealots Schenck had developed to infiltrate the SCOTUS socially and to influence the justices.
The court’s lawyer refused to answer any of the question posed by the lawmakers regarding ethics inquiries in the court that are ongoing or potential, or whether or which justice might have received gifts from their friends in the forced birth group. Instead, he tersely restated Alito’s denial of the allegations and a conflict of interest.
“There is nothing to suggest that Justice Alito’s actions violated ethical standards,” Torrey wrote.
That’s technically true. Because there is no code of ethical standards that governs the behavior of SCOTUS justices to violate.
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Torrey also suggested that the only possible ethical violation or conflict of interest that could exist in the court is a monetary one. He wrote that Alito was allowed to accept meals and lodging from the couple to which he allegedly leaked the Hobby Lobby decision because the couple “never had a financial interest in a matter before the Court.”
“In addition, the term ‘gift’ is defined to exclude social hospitality based on personal relationships as well as modest items, such as food and refreshments, offered as a matter of social hospitality,” Torrey wrote.
The “gifts” are of course the least of the issue. The issue is the coziness of Alito—and other conservatives—with activists who have ideological interests in the outcome of cases. Or in the case of Thomas, are sleeping with insurrectionists and not recusing from cases involving that.
Whitehouse and Johnson were scathing in response, saying that the “Court’s letter is an embodiment of the problems at the Court around ethics issues.”
“Unlike all other federal courts, there is no formal process for complaints; it took a Senator’s and a Congressman’s repeated letters to galvanize a response,” the pair said. “Unlike all other federal courts, there is no formal process for fact-finding inquiry.”
The court, they suggest, could just be making up whatever they want to say because there is absolutely no transparency in how the court does (or does not) deal with ethical concerns. “The assertions of fact by the Court’s lawyer emerge from darkness, and overlook important facts like all the contemporaneous evidence that Mr. Schenck in fact knew both the outcome and author in advance and acted at that time on that knowledge.”
“Unlike all other federal courts, there is no independence—no formal process of independent review” they continued. “That absence of independence violates the ancient maxim, nemo judex in sua causa: no one should judge their own cause.” (Whitehouse loves him some Latin.)
“These multiple failures of orderly process are peculiar, coming from the highest Court in the land. Procedure is the bone structure of justice,” they conclude.
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