The New York Times released a bombshell story Saturday in which a former anti-abortion activist accused Justice Samuel Alito of being responsible for leaking a milestone decision. Most of the attention so far has focused on that allegation — but the activist, who has now changed his position on abortion, also detailed leading a secret influence campaign targeting conservative Supreme Court justices. The story draws into sharp focus the Court’s lackluster approach to ethics and shows why both Congress and the Supreme Court itself must act to shore up the Court’s legitimacy.
Rev. Rob Schenck alleges that in 2014, Justice Samuel Alito or his wife divulged the outcome of a major Supreme Court ruling at a dinner with a couple who was secretly collaborating with Schenck. In the case, known as Hobby Lobby, the Court allowed religious exemptions to the Affordable Care Act’s contraceptive coverage requirement for certain for-profit corporations. Alito has denied the allegation.
Schenck also described to the Times what he called a “Ministry of Emboldenment,” which he directed and aimed toward some conservative justices on the Court “to ‘embolden the justices’ to lay the legal groundwork for an eventual reversal” of Roe v. Wade.
According to the Times, Schenck encouraged allies and wealthy donors to his organization to “invite some of the justices to meals, to their vacation homes or to private clubs,” and to contribute an estimated minimum of $125,000 to the Supreme Court Historical Society and “then mingle with justices at its functions.” Schenck also “ingratiated himself with court officials who could help give him access.”
“You can position yourself in a special category with regard to the Justices,” Schenck told the paper. “You can gain access, have conversations, share prayer.”
If true, the leak would be a breach of trust that underscores how few ethical rules currently bind members of the nation’s highest court — the only court in the country without a code of conduct. Schenck’s broader campaign also casts in a harsh light the extent to which some justices have cozied with activists and politicians — often behind closed doors. Schenck’s “emboldenment” ministry sounds very much like what lobbyists do with politicians all the time — but judges are not supposed to behave like politicians.
We may never know the extent to which Schenck’s activities had an impact on Alito. In fact, it may be unknowable because what we do know is that judges — like all people — often do a bad job of assessing their own biases. Judicial ethics rules are partly about stopping misbehavior, but they also often serve as a safeguard: to help judges avoid potentially compromising situations in the first place.
What is clear is that we need to get serious about Supreme Court ethics — and also establish a clear public record about the extent and potential impact of Schenck’s influence efforts. One critical step that Congress can take is to pass the Supreme Court Ethics, Recusal, and Transparency Act, which would, among other things, require the Supreme Court to adopt a binding code of conduct. We also need hearings, including testimony from Schenck and the Supreme Court Historical Society.
This is also an opportunity for leadership from the justices themselves. The Supreme Court does not need to wait for Congress to adopt a code of conduct. Nor need it wait to adopt other confidence-boosting measures, such as greater transparency about potential conflicts of interest and about the justices’ decisions on whether to recuse from hearing cases. The justices can also work to change the Court’s culture, by rethinking how they approach public appearances and private meetings and by distancing themselves from politicians and activists.
The courtroom is supposed to be a place where, in the words of Justice Sandra Day O’Connor, “being right is more important than being popular or powerful.” By all accounts, today’s public doesn’t believe that to be the case. Public confidence in the Supreme Court is at an all-time low, with only 16 percent of adults saying that the justices do a good or excellent job of keeping their own political views out of their decisions.
The Supreme Court has seen multiple blows to its legitimacy recently, from the rushed appointment of Amy Coney Barrett to Ginni Thomas’s texts with Donald Trump’s White House chief of staff. Justice Elena Kagan recently expressed concern about the Court’s standing in the aftermath of this year’s precedent-ignoring term.
Schenck’s allegations are almost certain to further damage an increasingly vulnerable institution. As Congress and the Supreme Court both consider where to go from here, we should all remember that legitimacy needs to be earned.