When conservative Supreme Court justices and leaders of the Federalist Society reveled in mutual and lavish praise at the 40th anniversary fete for the well-funded conservative legal organization earlier this month, the coziness wasn’t just unbecoming. It was problematic for the court, an institution that is supposed to rule based on the law and the Constitution, without fear or favor.
Yet, there was Justice Samuel Alito at the dais, in black tie, saying of the organization that helped handpick conservative nominees to the high court and dramatically shift its ideology: “Boy, is your work needed today.”
And there was Steven Markham, founder of the Federalist Society’s D.C. chapter, giving props right back to the justice for his ruling overturning Roe v. Wade, saying: “The Dobbs decision will forever be an indelible part of Justice Alito’s legacy.”
So the recent revelation that a decades-long campaign by religious conservatives to influence Supreme Court justices may have led to an early leak of another decision written by Alito — years before an early draft of Dobbs was made public — may not seem shocking. But it should be — it should shake to the core anyone who believes in the fair administration of justice and the rule of law.
I don’t need to explain how powerful the Supreme Court is. Rulings from the last term alone eviscerating reproductive rights, expanding gun rights beyond the home, further gutting the already weakened Voting Rights Act, among other decisions, speak for themselves. But the credibility of the court rests not just on what it rules, but on how it rules. Lifetime appointments are designed to insulate justices from external influences. Unlike elected officials in the legislative and executive branches, who are held accountable by the people through elections, justices, by design, are not.
But that foundation is cracked and in danger of collapse. The justices may not seem to understand that, but lawmakers and the public must.
In a weekend New York Times scoop, a former antiabortion activist, the Rev. Rob Schenck, claimed that he knew the outcome of a 2014 decision exempting religious employers from the Affordable Care Act’s contraception coverage mandate before it was released.
Schenck said he found out the result of the decision through a secretive influence campaign Schenck himself spearheaded. Alito, his wife, Martha-Ann, as well as Justice Clarence Thomas and his wife, Ginni, and the late Justice Antonin Scalia and his wife, Maureen, frequently socialized with religiously conservative couples recruited by Schenck. The effort, dubbed “Operation Higher Court” was designed to influence the court’s conservative wing by befriending, dining with, hunting with, and even traveling with the justices and their families. All the while, the couples would signal to justices, as Schenck told the Times, that “Christians are concerned about the court and the issues that come before it.”
It may be no coincidence that in recent years, religious freedom claims have been on the winning side of cases that have come before the court’s increasingly conservative majority. These cases not only cut against federal laws like the ACA, but also laws, rules, and regulations aimed at combatting the spread of COVID, prohibiting discrimination on the basis of sexual identity or orientation, barring prayer at public school events, preventing public funding of religious education and precluding religious displays on government property. That’s all aside from the court hitting conservatives’ top target: Roe v. Wade.
Alito denied he or his wife had anything to do with the leak of the decision. He did not deny, however, the close relationship he and his wife have with at least one of the couples in “Operation Higher Court” — Donald and Gayle Wright — who have even dined at the Alito’s home outside of Washington.
“My wife and I became acquainted with the Wrights some years ago because of their strong support for the Supreme Court Historical Society, and since then, we have had a casual and purely social relationship,” Alito said in a statement.
It seems the Wrights’ contributions of at least $125,000 to the court’s historical society, according to the Times, earned them not only the role of trustees of the organization, but literally got them seats at Alito’s table. That Alito, who has no qualms about publicly embracing the activism of the Federalist Society, sees no problem with this isn’t surprising. But that makes it more problematic, not less.
In a letter Monday to Chief Justice John G. Roberts, US Senator Sheldon Whitehouse of Rhode Island and US Representative Hank Johnson of Georgia, both Democrats, demanded answers, including: “Who is responsible for policing the relationship between the Supreme Court and the Supreme Court Historical Society to ensure that paid membership in the Society is not used as a means of gaining undue influence?”
It’s a good question — one that Roberts, who had repeatedly expressed deep care about the institution of the court, as well as members of Congress who have the power to enact stronger ethical rules governing the court, need to answer.