“Nothing to see here.”
That might as well have been what the Supreme Court’s lawyer wrote this week to Democratic lawmakers who were seeking answers about a series of explosive claims implicating the court’s right wing.
The claims included the potential leak of Justice Samuel Alito’s Hobby Lobby opinion in 2014. If it is true, it would be the second known leak of an Alito decision — the other being the draft of his opinion overturning Roe v. Wade this year.
The court counsel’s letter to the lawmakers Monday recited denials by Alito and Gayle Wright, a conservative donor who allegedly received the leak, while stating there’s “nothing to suggest” the justice violated ethical standards.
Well, then. Nothing to see here.
Of course, former anti-abortion activist Rob Schenck, who recruited wealthy donors like Wright and her husband to influence the justices in a campaign dubbed “Operation Higher Court,” told The New York Times a different story. In a report published Nov. 19, Schenck said he got the goods from Wright after she dined with Alito and his wife in June 2014, weeks before the opinion came out.
The maybes keep piling up — and that’s just on the Alito leak allegation, which, it’s important to remember, is only part of the broader story.
Here’s the thing. For all we know, Alito and Wright could be telling the truth. But the court’s letter defending Alito accidentally makes the case for a thorough, independent investigation of the matter.
One questionable aspect of the letter is its selective quotation of the Times report about the alleged leak, which court counsel Ethan Torrey cited to note that, according to the article, Schenck’s account “has gaps.” Yet, Torrey’s letter didn’t mention the next line in that same paragraph of the article, which starts with “But,” a word commonly understood to signal contrasting information ahead. Indeed, the story, but not the court’s letter, goes on to provide more context:
But in months of examining Mr. Schenck’s claims, The Times found a trail of contemporaneous emails and conversations that strongly suggested he knew the outcome and the author of the Hobby Lobby decision before it was made public.
Well, then. Maybe there’s something to see here after all.
Sure, maybe the “gaps” in Schenck’s account outweigh the “strongly suggested” leak. But that’s the problem: too many maybes and not enough clear answers.
The court’s letter, meanwhile, isn’t a search for the truth. It takes Alito and Wright’s word for it while selectively criticizing Schenck. That leaves us no wiser about whether Alito or anyone else tipped Wright off to the admittedly unsurprising fact that the justice authored a ruling siding with Hobby Lobby, a company that sought to avoid, on religious grounds, providing contraception to employees, as mandated at the time by the Affordable Care Act. (To be sure, the results in controversial cases were less preordained in 2014, when swing vote Anthony Kennedy was on the court. Hobby Lobby was a 5-4 opinion. That margin today would most likely be wider.)
It looks like we may get clearer answers — or at least a fuller airing of still-unanswered questions. The Senate Judiciary Committee is reviewing the allegations. And the House Judiciary Committee said it will hold a hearing next Thursday titled “Undue Influence: Operation Higher Court and Politicking at SCOTUS.”
Next Thursday, the House Judiciary Committee will hold a hearing on recent revelations about “Operation Higher Court” and the credible allegations that Justice Alito leaked the authorship and outcome of the opinion in Hobby Lobby.
— Mondaire Jones (@MondaireJones) December 1, 2022
Grateful to Chairman Nadler for heeding my call. https://t.co/YIfyVUrwVI
One piece of evidence worth exploring is an email Wright reportedly sent to Schenck the day after the 2014 dinner in question. According to The Times, she wrote: “Rob, if you want some interesting news please call. No emails.” Schenck said Wright told him she had learned that Alito would be authoring the Hobby Lobby opinion in favor of the business.
But Wright, in an interview with The Times, suggested the “interesting news” was related to something else:
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.
Does that sound like something so “interesting” that one wouldn’t want it memorialized in an email?
It would be interesting to hear what everyone involved would say under oath. It would also be interesting to see what other evidence someone who writes “no emails” in an email might have lying around.
And if Schenck is lying and besmirching the court in the process, wouldn’t Republicans want that exposed beyond any doubt?
The maybes keep piling up — and that’s just on the Alito leak allegation, which, it’s important to remember, is only part of the broader story. That broader story, as laid out in the Times report selectively quoted by the court, is the religious campaign led by Schenck to influence Republican-appointed justices.
It’s fair to think those justices haven’t needed much help casting Republican-aligned votes, but it’s worth asking why Schenck and his “stealth missionaries,” as he called them, thought their targets could be swayed in any moments of doubt — and what type of swaying those missionaries have attempted and accomplished. That broader story, of course, needs independent investigation, too, as Democrats appear to acknowledge.
It’s against that backdrop that the latest court crisis arises, as the justices, unbound by a formal ethics code, face an unusually steep trust deficit with the public over which they rule. While the high court has basically been operating on an ethical honor system (as opposed to lower federal judges who are subject to binding rules), the judiciary committees’ sniffing around could shed some much-needed light.
The public deserves an independent questioning of the Alito matter and the larger judicial influence campaign — even if the answer turns out to be “Nothing to see here.”
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.