• Show Notes

Note From Elie is part of the free weekly CAFE Brief newsletter.

Sign up free to receive the CAFE Brief in your inbox every Friday: cafe.com/brief

Become a member of CAFE Insider: cafe.com/insider

Dear Reader,

One of these things must be true, but only one: (1) Rob Schenck is a remarkably lucky guesser, or (2) Samuel Alito is full of it. It can’t be neither, and it can’t be both.

You probably recognize one of those names, but only one. Samuel Alito is, of course, a Justice on the United States Supreme Court. He took the nation’s highest bench in 2006 and since then has been an unshakable conservative whose vote is as predictable as gravity. He started off in the ideological minority, but now he’s part of a six-to-three right-wing supermajority steamroller.

Now to the other guy, this Rob Schenck. He’s the primary focus of a remarkable piece of recent reporting by the New York Times titled “Former Anti-Abortion Leader Alleges Another Supreme Court Breach.” It’s a long-ish story and I recommend giving it a full read, but here’s the Cliffs Notes version. 

In the early 2000s, Schenck was an anti-abortion activist who started an evangelical non-profit based in a Washington, DC, office across the street from the Supreme Court building. Schenck’s plan was to launch an undercover influence campaign. Conservative supporters of his non-profit, including a couple named Donald and Gayle Wright, donated to the Supreme Court Historical Society, got to rub shoulders with the justices at social events, and eventually developed personal relationships with the justices and their spouses. Schenck dubbed these operatives his “stealth missionaries.” 

The Wrights became particularly close with Alito and his wife – so close, in fact, that in 2014, at oral argument in the landmark Hobby Lobby case, the Wrights got to sit inside the Supreme Court Chamber, in seats reserved for special guests of Alito (and Justice Antonin Scalia). The Hobby Lobby case involved a provision of the newly-passed Affordable Care Act (“Obamacare,” if you prefer) requiring certain private companies to pay for insurance coverage for contraception. Hobby Lobby, a family-owned crafts company, challenged the law, arguing that it violated the corporation’s religious freedom to require it to pay for contraception for employees. It was big case for the Court and the country, and a blockbuster for Schenck and his fellow anti-abortion advocates.

In early June 2014, the Wrights had dinner with the Alitos. Schenck now claims that, after that dinner, Gayle Wright gave him an explosive and top-secret bit of information: the Court was going to rule in favor of Hobby Lobby, and Alito himself would be writing the majority opinion. Schenck, in turn, used that inside info to prepare a public relations push – and, shortly before the decision came down, he tipped off the president of Hobby Lobby about the impending Supreme Court victory. Just three weeks later, it went down precisely as Gayle Wright had said it would: the Court ruled for Hobby Lobby by a 5-4 vote. And guess who wrote the majority opinion? The Honorable Samuel Alito.

In recent years, Schenck has dramatically changed his views on abortion, and he has now become what the Times termed a “progressive evangelical leader.” In connection with his ideological conversion, Schenck shared his account with the Supreme Court (more on this in a moment) and with the Times

Alito has furiously denied any impropriety. He acknowledged that he and his wife had a social relationship with the Wrights, and indeed went to dinner with them on June 3, 2014. But, Alito said in response to the Times, the “allegation that the Wrights were told the outcome of the decision in the Hobby Lobby case, or the authorship of the opinion of the Court, by me or my wife, is completely false.” 

This brings us to the crux of our conflict. Somehow, Schenck and the Wrights knew in advance, before it became public, that Hobby Lobby would win and that Alito would author the ruling. Schenck gave contemporaneous emails corroborating their foreknowledge to the Times

And that leaves us with the two options we discussed up front. First, it could be that Gayle Wright or Schenck was just a lucky guesser, or that they engaged in educated speculation that turned out to be correct. It certainly wasn’t impossible to predict a Hobby Lobby victory; the case seemed likely to be a close call, and it was, with a narrow 5-4 margin. And, assuming that outcome, Alito was one of the five conservative justices who realistically could have written the opinion. People have guessed at longer shots than that and been correct. But still: the odds were stacked against predicting both the outcome and the majority opinion writer.

The alternative is that Alito’s categorical denial is false. In this scenario, Alito or his wife shared their little secret about the then-pending Hobby Lobby decision over dinner with their pals, the Wrights, perhaps with a wink and a nod and a bit of innuendo, and the Wrights then tipped off Schenck. (Keep in mind: this is the very same case for which Alito gave his special, reserved courtroom seats to the Wrights; might they have discussed that same case at dinner a few weeks later?) Alito – knowing full well there’s no way there will ever be a formal investigation to test his denial – simply puts on his haughty face, says it isn’t so, and moves along. 

If you’re disinclined to believe Alito, you’re probably wondering what can be done. The answer, I’m afraid, is not much. Alito, like his colleagues on the Court, is largely above meaningful accountability. He has life tenure. He answers to nobody. The Court doesn’t even have its own code of professional ethics, though all other federal judges do. (Yes, a justice can be impeached, but that’s not happening, especially with the House about to turn over to Republican control.) 

The Court’s public standing is now at a historic low, with only 25% of respondents in one poll expressing confidence in the Court. That’s happening because of the conduct of the justices, both on and off the bench.  

Alito is a big part of the problem. He has recently taken to hectoring others for the Court’s self-imposed reputational collapse. He publicly blamed the media for having the temerity to use “sinister” language to question the Court’s escalating use of its below-the-radar emergency docket, and he whined that the press portrays the Court as a “dangerous cabal.” In a bizarre speech at Notre Dame, he claimed that people who disagree with his views of religious liberty “want to hold complete power” because of “something dark and deep in the human DNA.” Later, he arrogantly mocked foreign leaders who criticized his majority opinion in the Dobbs case, which overruled Roe v. Wade.

Alito has been living in the Supreme Court bubble for too long. Like some of his colleagues on the bench, he has developed a god complex of sorts. He’s now used to a world where things are because he says they are. As the saying goes, the Supreme Court isn’t final because it is perfect; it’s perfect because it’s final. But neither Alito nor his colleagues are above our criticism. And the fact is, every time Alito airs his grievances in public, he further debases himself and the Court.  

Speaking of the Court’s self-inflicted wounds: what ever happened to the investigation of that leak of the draft Dobbs opinion? (Schenck originally told the Court his story because he thought it might be relevant to the investigation of the Dobbs leak.) Chief Justice Roberts vowed to get to the bottom of it, and then gave the task to the Supreme Court’s own in-house Marshal (which, apparently, is a thing) – a curious decision with the far more formidable Justice Department right up the block. Seems like Roberts may not really want an answer here, or at least wants to keep the investigation under his own roof.

I genuinely have no idea what the Dobbs leak investigation will reveal (if anything at all). Part of me thinks the leaker was an infuriated liberal Court member, clerk, or staffer having a temper tantrum. But it just as well could have been a conservative trying to freeze in place the delicate five-vote majority to overturn Roe, and to prevent any of those justices from joining Roberts in a middle ground that would undercut but not completely obliterate Roe. Neither outcome would stun me.   

Both the Dobbs leak and Schenck’s allegations about Alito share a common theme: this is a Court in internal disarray, and that chaos rightly fuels public distrust in the institution. We learned from the Dobbs leak that the Court can’t even contain its own most fundamental deliberative process. And the Hobby Lobby story suggests that certain well-connected Court pals and patrons have tried to influence the Court, and may have gotten handy insider tipoffs for their trouble. So while the justices – Alito in particular – have wagged their fingers at the media and others for the steep decline in public faith in the Court’s integrity, the truth is the justices have only themselves to blame. 

Stay Informed,