Top Democrats are calling for an inquiry into explosive allegations that an earlier Supreme Court decision authored by Samuel Alito was leaked—seemingly by the conservative justice himself. “The first step to recovery is to admit you have a problem,” Democratic Senator Sheldon Whitehouse wrote on Saturday. “At SCOTUS, the problems run deep.”
The high court was already battling intense questions about its legitimacy following its Dobbs decision striking down reproductive rights at the federal level, a draft of which was obtained and published by Politico more than a month before the ruling was handed down. But a New York Times report over the weekend is sure to kick the scrutiny around Alito and Chief Justice John Roberts into overdrive: A former antiabortion leader claims he was tipped off to the Supreme Court’s landmark Hobby Lobby decision in 2014, before it was issued, by two associates who had dined with Alito, the author of that majority opinion that prohibited the federal government from requiring private companies to cover contraceptive care for employees. The activist, Reverend Robert L. Schenck, told the Times that he used the information to “prepare a public relations push” and alerted Hobby Lobby, the Evangelical-owned arts and crafts chain that prevailed in the case. Schenck also says he disclosed the alleged breach in a letter over the summer to Roberts—who promised to conduct a probe into the Dobbs breach he described as a “betrayal” and an attack on the “integrity” of the court—but noted the chief justice never responded to him.
“Considering there may be a severe penalty to be paid by whoever is responsible for the initial leak of the recent draft opinion” Schenck wrote to Roberts, “I thought this previous incident might bear some consideration by you and others involved in the process.”
The Times’ report provides a rare glimpse into the court’s problematic culture, in which Schenck and other conservative activists were able to privately mingle with Alito, Clarence Thomas, and the late Antonin Scalia. “It’s clear that one of the nation’s most important institutions—an institution that claims to be above politics—has been quietly captured by far-right political groups and secretive dark money influence,” Whitehouse and Democratic Congressman Hank Johnson said in a joint statement Saturday. “The Court needs to get its house in order and adopt a code of ethics, just as the lower courts have, and bring its travel and disclosure rules in line with the other branches of government.”
Suffice to say, the alleged 2014 leak, which Alito denied through a spokesperson, raises major questions about the Dobbs breach earlier this year. It also raises significant questions about Roberts’ investigation into that leak, which has apparently been underway for the last six months, almost completely out of the public’s view. Meanwhile, Democrats have called on Roberts to detail what investigation, if any, has been conducted into Schenck’s allegations—and to provide further information on ethical concerns the two had raised in another letter to Roberts earlier this fall. Democrats in Congress have also indicated that they would investigate the matters with their committees. (Whitehouse, who chairs a Senate Judiciary subcommittee on the courts, could follow through on it, as the Democrats held onto control of the upper chamber in this month’s midterms. But Johnson, who chairs the equivalent committee in the House, only has a couple months until the Republican majority takes over.)
Ultimately, it’s unclear whether the party will be able to put the Supreme Court under more oversight. Either way, it won’t put to rest questions about the body’s legitimacy. Roberts has made clear he believes the American public should blindly trust the Supreme Court. But, if anything, the latest revelations are further evidence that the judiciary doesn’t deserve our trust. “When the American people get their day in court, they must be able to trust that the decision handed down is justly rooted in law and fact,” Whitehouse and Johnson said in their statement. “Not the wishes of right-wing political groups and megadonors who purchased access to wine and dine the justices.”