05 Dec The Boastful Justice & the Leaky Court
On my podcast recently, I hosted four guests from the newly transformed, digitalized and updated feminist classic Our Bodies Ourselves, on its 50th Anniversary.
That naturally got me thinking about health and the Supreme Court’s decision on Roe v. Wade, so I cannot resist sharing with you a piece I saved from a month or so ago: a New York Times article by Jodi Kantor and Jo Becker in The Daily. It’s about a former anti-abortion leader turned whistleblower who is now alleging another Supreme Court leak, in addition to the recently leaked draft opinion by Justice Samuel Alito, about his overturning of Roe.
Keep in mind that I nurture a fragile, poignant hope that some brilliant, enterprising attorney out there will connect the dots about the Court and initiate what will become, in my fantasies, a massive, successsful, grassroots movement to impeach Justices Alito, Thomas, Kavanaugh, Gorsuch, and Coney Barrett–although I would settle for dumping Alito, Thomas, and Kavanaugh.
Anyway, in a letter to Chief Justice John Roberts (to which, to date, there has been no response), and in interviews with The New York Times, the Reverend Rob Schenck said that he had been told the outcome of a case in 2014, weeks before it was announced. He had used that information to prepare a public-relations push, and he said that at the last minute he tipped off the president of Hobby Lobby, the craft-store chain owned by Christian evangelicals who were the winning party in the case then before the Court. Of course, both Court decisions, Hobby Lobby and Roe, were wild successes for the religious right. They were also cause for delirious joy in Opus Dei, the shadowy arch-right-wing Roman Catholic group that made Pope Francis quite cranky, which I confronted on September 26 of this year in this blog. Opus Dei is the extremist, powerful, secret organization to which at least four, perhaps five, current members of the Court belong.
The leak of Alito’s draft opinion overturning the constitutional right to abortion, a story broken by Politico, set off a national uproar. But the Hobby Lobby decision leak was shared with only a handful of advocates. So it’s important to spread the news, notice the pattern, and peer into the background.
Schenck’s allegation creates an interesting situation: a minister who spent years at the center of the antiabortion movement has now turned whistleblower; there’s also a denial by a sitting justice (Alito again! how he does babble his secrets!); furthermore, the Court, in the person of Chief Justice Roberts, also shows a considerable resistance at getting to the bottom of either case.
The whistleblower minister, who used to lead an evangelical nonprofit in Washington DC, said he learned about the Hobby Lobby opinion because of his work for years trying to exploit the Court’s permeability, from gaining access to favors traded with gatekeepers, and through wealthy donors to his organization–abortion opponents, whom he called his “stealth missionaries.” The minister’s account comes at a time when there are growing concerns about the court’s legitimacy; Americans are losing confidence in the institution, with approval ratings at a historic low.
(Forty-seven percent of U.S. adults say they have “a fair amount” of trust in the judicial branch of the federal government that is headed by the Supreme Court. This represents a 20-percentage-point drop from two years ago, including seven points since last year, and is now the lowest in Gallup’s trend by six points. The judicial branch’s current tarnished image contrasts with trust levels exceeding two-thirds in most years in Gallup’s trend that began in 1972–and remember, Gallup is a conservative pollster.)
In early June 2014, an Ohio couple who were Reverend Schenck’s star donors shared a meal with Justice Alito and his wife Martha-Ann. A day later, Gayle Wright, also present at the meal, contacted Schenck in an email: “Rob, if you want some interesting news, please call. No emails.” Schenck said Mrs. Wright told him that the decision would be favorable to Hobby Lobby and that Alito had written it.
Three weeks later that is precisely what happened. The Court ruled 5 to 4 that requiring family-owned corporations to pay for insurance covering contraception violated their religious freedoms. The decision would go on to have major implications for birth-control access, for Obama’s new healthcare law, and for corporations’ ability to claim religious rights. In a statement, Alito denied disclosing the decision, saying that he and his wife shared a “casual and purely social relationship” with the Wrights–a statement challenged by their appointment diaries–and added that the allegation was false. So did Mrs. Wright in a phone interview. A representative for Hobby Lobby would not comment. The whistleblower minister had not been present at the meal himself, but the Times interviewed four people who said he had told them years earlier about the breach, and emails from 2014 show him directing his staff to prepare for a conservative Court decision. In another email, sent in 2017, he described the disclosure as “one of the most difficult secrets ever kept in my life.”
In interviews, emails, and other records shared with the Times, Reverend Schenck provided details of the effort he called “the ministry of emboldenment.” He recruited wealthy donors like the Wrights, encouraged them to invite justices to meals, vacation homes, or private clubs. He advised allies to contribute money to the Supreme Court Historical Society, and mingle with justices at its functions. He ingratiated himself with court officials who gave him access. All the while, he leveraged his connections to raise money for his nonprofit, Faith and Action. He pursued the Hobby Lobby information in order to cultivate its president, Steve Green, as a donor.
Mr. Schenck, 64, has shifted his views on abortion in recent years, alienating him from many of his former associates. His decision to speak out now about the Hobby Lobby episode, he says, stems from the revelation of the Roe decision leak, as well as his regret about his own previous actions. “What we did,” he says, “was wrong.”
Supreme Court Justices mostly police themselves, which Schenck confesses he exploited. While subject to the same law on recusals as other federal judges, they are not bound by the ethics code that applies to the rest — they can socialize with lawyers, or even parties with interests before them, as long as they “do not discuss pending cases.” Still, the ethics code requires judges to avoid any impression outsiders are in a special position to influence them, and Schenck gave his stealth missionaries close instruction, because he “knew the public at large would be upset by that kind of access.” He adds, “I would look up at that phrase, chiseled into the building of the Supreme Court itself: ‘equal justice under law,’ and I would think, ‘Not really.'”
Any enterprising attorneys out there itching to impeach an (in)Justice?