Ethical Storm Clouds Continue to Darken the Door of the Supreme Court

Charles Pierce / Esquire
Ethical Storm Clouds Continue to Darken the Door of the Supreme Court A Supreme Court police officer on the plaza of the Supreme Court building in D.C. on Oct. 3. (photo: Jonathan Ernst/Reuters)

What makes Sammy run? The New York Times. In a piece that obviously was edited down to its bones and lawyered to within an inch of its life, the NYT got a copy of a letter sent by a leading anti-choice activist to Chief Justice John Roberts in which he charges that Justice Samuel Alito leaked the court's notorious 2014 opinion in Burwell v. Hobby Lobby to his pals in the raving theocrats universe so they could use it pre-emptively to goose their membership rolls. The letter—and the piece—strongly implies that this violation of Supreme Court protocols might offer a possible precedent in the investigation into who leaked Alito's draft opinion in Dobbs, which took away reproductive choice from American women.

Both court decisions were triumphs for conservatives and the religious right. Both majority opinions were written by Justice Samuel A. Alito Jr. But the leak of the draft opinion overturning the constitutional right to abortion was disclosed in the news media by Politico, setting off a national uproar. With Hobby Lobby, according to Mr. Schenck, the outcome was shared with only a handful of advocates. Mr. Schenck’s allegation creates an unusual, contentious situation: a minister who spent years at the center of the anti-abortion movement, now turned whistle-blower; a denial by a sitting justice; and an institution that shows little outward sign of getting to the bottom of the recent leak of the abortion ruling or of following up on Mr. Schenck’s allegation.

Denials have sprouted all around, from Alito himself to the couple whose casual dinner conversation Schenk maintains was one of the sources of his information about the Hobby Lobby leak. But it's clear from this starched and bleached NYT story that Schenck told his story to more than a few people, that Schenk was at the time a big swinging Schenk in the anti-choice movement, and that his particular project was infiltrating the federal judiciary.

In interviews and thousands of emails and other records he shared with The Times, Mr. Schenck provided details of the effort he called the "Ministry of Emboldenment." Mr. Schenck recruited wealthy donors like Mrs. Wright and her husband, Donald, encouraging them to invite some of the justices to meals, to their vacation homes or to private clubs. He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who could help give him access, records show. All the while, he leveraged his connections to raise money for his nonprofit, Faith and Action. Mr. Schenck said he pursued the Hobby Lobby information to cultivate the business’s president, Steve Green, as a donor.

I want a job in the Ministry of Emboldenment. Does it come with a plumed hat and a sword?

It is unclear if Mr. Schenck’s efforts had any impact on legal decisions, given that only Justices Alito, Antonin Scalia and Clarence Thomas proved amenable to the outreach, records show, and they were already inclined to overturn Roe v. Wade. That decision was only reversed this year after the addition of new conservative justices altered the court’s ideological makeup. But Mr. Schenck said his aim was not to change minds, but rather to stiffen the resolve of the court’s conservatives in taking uncompromising stances that could eventually lead to a reversal of Roe.

Nothing stiffens ol' Sam Alito's "resolve" like knuckling down on the already powerless. Nobody's resolve is ever stiffer than his.

Evidently, Schenk is in full sackcloth and ashes now, if you were looking for another nominee to the Day Late And A Dollar Short Club, Beltway Division. The Times goes deeply into his long history of anti-choice activism, including his attempt to ambush then-President Bill Clinton with an aborted fetus. (Safe, legal, and rare, right, Mr. President?) But he moved quite quickly away from street theater to top-rung Washington networking.

Mr. Schenck’s overtures met with a mixed response. Chief Justice Roberts and the court’s longtime swing voter, Justice Anthony M. Kennedy, were “polite but standoffish,” Mr. Schenck said. (Once, after he included a photo of himself with the chief justice in fund-raising material, he received a letter of rebuke.) But Mr. Schenck said he visited Justices Scalia and Thomas in chambers, where he shaped his prayers as political messaging, using phrases like “the sanctity of human life” to plea for an end to abortion. (Peggy Nienaber, who worked with Mr. Schenck, was recently recorded saying that the group had prayed with justices at the court.) Mr. Schenck also asked Justice Scalia to meet privately with the Rev. Frank Pavone, an incendiary anti-abortion activist who ran Priests for Life, a nonprofit that has been involved in issues before the court, as have Mr. Schenck and Faith and Action. “As I am sure you will appreciate, my position does not permit me to assist in the work of Fr. Pavone’s organization,” Justice Scalia wrote in a letter, adding, “I will be happy to meet him, however, at a time he can arrange with my secretary.”

Holy Jesus (if you'll pardon the expression), but Pavone is a real nut. He should have been on a watchlist, not in a justice's chambers. Then came the Hobby Lobby business.

In June 2014, when Mrs. Wright told Mr. Schenck that she and her husband would be dining privately with the Alitos, she and the minister agreed she would try to learn the outcome of the Hobby Lobby case, he said. “She knew I had an interest in knowing,” Mr. Schenck wrote in his letter to the chief justice. On June 4, the day after the meal, Mrs. Wright sent Mr. Schenck her cryptic email saying she had news. In the interview, Mrs. Wright said that while she did not have her calendars from those days, she believed the night in question involved a dinner at the Alitos’ home during which she fell ill. She said that the justice drove her and her husband back to her hotel, and that this might have been the news she wanted to share with Mr. Schenck.

'Hey, pal. Big news! I got sick at dinner! Yeah, at the Alitos. Didn't throw up on Sam, though.' Old dog declines to participate.

It is plain that the current, carefully engineered conservative majority on the court is made up of deeply corrupted individuals. Not financial corruption, mind you (at least as far as we know), but corrupted by Washington's true currency: access and ideology, combining to produce unaccountable power. Roberts has to know that the institution he leads is bleeding credibility by the bucketful. The Democrats in Congress are already talking about hearings; this is exactly the kind of thing that Sen. Sheldon Whitehouse has been banging on about for over a year now. The only way for Roberts to repair his institution's reputation is to cooperate with whatever hearings Congress opens and to accept a Code of Ethics for the justices—something they do not have at present—even if it comes from Congress.

In other news about the theocrats in the woodpile, Justice Amy Coney Barrett is being asked to recuse herself from ruling on 303 Creative LLC v Elenis, a gay rights case by former members of a secretive faith-based network to which she still belongs. From the Guardian:

The former members are part of a network of “survivors” of the controversial charismatic group who say Barrett’s “lifelong and continued” membership in the People of Praise make her too biased to fairly adjudicate an upcoming case that will decide whether private business owners have a right to decline services to potential clients based on their sexual orientation. They point to Barrett’s former role on the board of Trinity Schools Inc, a private group of Christian schools that is affiliated with the People of Praise and, in effect, barred children of same-sex parents from attending the school. A faculty guide published in 2015, the year Barrett joined the board, said “blatant sexual immorality” – which the guide said included “homosexual acts” – had “no place in the culture of Trinity Schools”. The discriminatory policies were in place before and after Barrett joined. The schools’ attitude, the former People of Praise members said, reflect the Christian group’s staunchly anti-gay beliefs and adherence to traditional family values, including – they say – expelling or ostracizing members of the People of Praise “community” who came out as gay later in life or their gay children.

Incidentally...

Barrett has never publicly acknowledged her membership in the community since becoming a judge and did not disclose it during her 2020 confirmation. It was reported at the time that the People of Praise erased all mentions and photos of her from its website ahead of her meetings with lawmakers.

Today's reading is from the Book of Omerta, Chapter V, Verses 12–18.

This is an easy one. Roberts should simply demand that Barrett take a walk on this case. He should also demand a public yes-or-no as to whether she belongs to the People of Praise. He can't make her do any of that, but simply by making the demand he can demonstrate to the public that he wants to get his own house in order before some Congress does it for him.

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