The Real Problem With the Second Alleged Leak at the CourtDahlia Lithwick Slate
It doesn’t matter if Alito preemptively revealed the outcome in Hobby Lobby. Consider the rest of the story.
That’s about the sum of the public defense mounted against the blockbuster New York Times report that came out on Saturday. The story dropped a bit of a bombshell: It alleges that in 2014, Justice Samuel Alito told donors to a religiously motivated Supreme Court lobby organization that he would be authoring the opinion in Burwell v. Hobby Lobby, and that the religious objectors would be on the winning side of the case. This revelation can really only be compared to another leak—that of the full draft of the Dobbs opinion this May—but it passed through the media and legal worlds with much less fanfare. Who among us doesn’t like a good dinner and some hot gossip? Court critics, yet again, were told to get over themselves.
As Jodi Kantor and Jo Becker describe it, a then-anti-abortion crusader, the Rev. Rob Schenck, knew the outcome of the 2014 case challenging the contraception mandate of the Affordable Care Act weeks before it was announced. Whether Schenck heard this from the Wrights, the wealthy Ohio donors who dined with the Alitos in early June of that year, as he alleges, or merely from someone else, the fact is that there is ample contemporaneous reporting by Kantor and Becker to show that Schenck knew what was coming and acted accordingly.
Schenck is, to be sure, an unreliable whistleblower, and particularly so based on his own prior activities. And to the extent the problem here is framed as the leak from Alito, it bears keeping in mind that the leak is actually the least problematic aspect of the undisputed relationships between sitting Supreme Court justices and wealthy donors who pay to gain access to them, which the story also recounts in great detail. As the Times notes, the Wrights publicized the fact that they got involved with Schenck’s organization, Faith and Action, “to have a major impact on the attitudes and actions of those in a position to shape and interpret our laws,” as they wrote in a 2001 newsletter. Undisputed is the fact that between 2000 to 2018, when he left Faith and Action, Schenck raised more than $30 million to do just that.
Also undisputed is the fact that Alito and his wife, Martha-Ann, were dining in June with wealthy donors who had a vested interest in the outcome of Hobby Lobby. Alito, in his statement this week from the court, acknowledges this fact. Undisputed is that one of the wealthy donors, Gayle Wright, contacted Schenck immediately after the dinner with an email saying, “Rob, if you want some interesting news please call. No emails.” (The Times, having seen that email, asked Wright what else this secret unprintable “interesting” news was. She said that she was telling him she had recovered from a stomach ailment. M’kay.) Undisputed as well is the fact that the Wrights had been cultivated by Schenck among other wealthy fans of religious liberty to donate big sums of cash to the Supreme Court Historical Society so they could garner access to the justices, and that while some justices rebuffed these efforts, Justices Samuel Alito, Clarence Thomas, and Antonin Scalia did not. Instead, those three justices rewarded donors with access and highly sought-after seats at oral arguments in the marquee religious freedom case of the year.
“We were invited to use seats from Nino and Sam,” Gayle Wright wrote Schenck before arguments in the Hobby Lobby case at hand. “Wow!”
Wright explained that Scalia gave her and her (now deceased) husband seats for arguments “all the time” because “Nino and my husband were very good friends.” In his statement to the New York Times denying improper conduct, Alito insisted that he and his wife shared a “casual and purely social relationship” with the Wrights.
The casual and social relationships cultivated by the Wrights included, among other things: hunting with Scalia; socializing with the Alitos, Scalias, and Thomases; and hosting the Alitos at their vacation home near Jackson Hole, Wyoming. As one does. Gayle Wright was extremely busy with all of these casual and social friendships. A 2016 email noted that her schedule included: “Lunch with CT on Monday, Sam on Wednesday, dinner at court on Monday, Dinner with Maureen [Scalia’s wife] on Wednesday.”
It is also undisputed that donations to the Supreme Court Historical Society purchased access to the justices. Indeed, it is undisputed that it allowed interested donors access to Supreme Court events, which is how the society’s executive director, David T. Pride, came to bring the CEO of Hobby Lobby, David Green, to a November 2011 Christmas party hosted by the chief justice at the high court itself. After, Schenck described Green’s parents as potential big givers to the society: “Family is worth about $3b.” And shortly thereafter, Green got on board with a challenge to the Affordable Care Act that would become the Hobby Lobby litigation.
Also undisputed is that Alito knew enough about Wright’s casual and social religious views (she was interested, she has explained, in “all cases related to biblical issues”) to suggest that she attend a lecture at the court by Kelly Shackelford, the president of First Liberty Institute, which also litigates religious liberty cases before the high court. Also undisputed are earlier reports about Faith and Action in Politico and Rolling Stone. Reports that include claims of praying with the justices in chambers and financing expensive dinners with Thomas, Alito, Scalia, and their wives. And yet, financial disclosures from the justices rarely include expensive meals and “personal hospitality.”
Alito’s statement to the New York Times seems to be more focused on asserting that the Wrights (who are not bound by any ethics or disclosure rules) did nothing wrong: “I never detected any effort on the part of the Wrights to obtain confidential information or to influence anything that I did in either an official or private capacity, and I would have strongly objected if they had done so.” First, whether the Wrights acted improperly by receiving confidential information is far less worrisome than whether he—a Supreme Court justice—acted improperly by somehow revealing information. But even then, what are we to make of the fact that wealthy religious zealots paid money to pray with and socialize with and extract priceless personal favors from Supreme Court justices? Religious zealots are free to do any and all of those things. The real issue is that the justices allowed this to happen, encouraged and rewarded it, and now pretend that the real offense here is a policing of their casual social lives. As Rolling Stone reported this spring, Faith and Action, which claims to have been regularly praying with some of the justices over a span of many years, also filed amicus briefs before the court.
In other words, the leak is actually the very least of it—in part because nobody actually believes the court intends to police its leakers or even to investigate them. The New York Times piece about a massive influence network is the real travesty, without even a mention of the leak, and the fact that the wealthy donors didn’t secure special favors because the justices were already in the tank for their religious ideology doesn’t make this smell any better.
And that is the crux of it. The fact that some of the justices believe that “casual” and “social” relationships with lobbyists, activists, and interested parties who have business before the court are appropriate and acceptable is the problem, because it means they cannot be trusted to avoid such contacts. The problem is that the same justices who keep blaming their colleagues and the press and the American public for broad declining trust in the institution seem to have no comprehension of what kinds of behaviors appear to be inappropriate because they actually are inappropriate. Traffic court judges in towns with four stoplights know better than to drink and vacation and shoot with interested parties before them, much less set aside choice seats for big ticket cases. Evidently it’s different when the interested parties are rich.
What the Wrights and the other donors purchased when they bought access to Supreme Court events and parlayed that access into lavish vacation homes and dinners was not unlawful. But it was, and is, within the power of the justices who benefited from all of these efforts to have avoided them. They did not because they seem to have believed that they were engaged in acts of casual friendship. That is frankly just sad, at a personal level. But it also tells you all you need to know about why this court will keep burning its own legitimacy candle at both ends. They don’t even recognize it as a problem. The unfettered and lucrative sucking up, lobbying, and currying of favor—and the attendant rewards—are all recast as harmless socializing.
These very same Supreme Court justices who continue to claim that they will let us know who is to blame for plummeting approval numbers may well believe that their own judgment on this issue is unimpaired. Their judgment is profoundly impaired, and the New York Times reporting reveals why they cannot be counted on to fix the problem. They cannot even be counted on to name it.