The Supreme Court on Monday defended Justice Samuel Alito against allegations that a former anti-abortion leader had been tipped off in 2014 to a landmark contraception ruling written by the justice. The court also sidestepped questions from lawmakers about whether the claim would be investigated further.
The New York Times reported this month on secretive, yearslong efforts by the Rev. Robert Schenck, an evangelical minister and longtime anti-abortion activist, and donors to his nonprofit, to reach conservative justices to bolster their anti-abortion views. Schenck wrote to Chief Justice John Roberts this summer, saying that he had learned in advance the 2014 decision in Burwell v. Hobby Lobby, a case involving contraception and the religious rights of corporations.
That decision — like the one that was leaked this spring, overturning the right to abortion — was written by Alito. Schenck said he obtained the Hobby Lobby information after two donors shared a meal with Alito and his wife.
In a letter Monday to two lawmakers, Ethan V. Torrey, legal counsel to the court, reiterated Alito’s earlier denial to the Times. “Justice Alito has said that neither he nor Mrs. Alito” told the donors “about the outcome of the decision in the Hobby Lobby case, or about the authorship of the opinion of the court,” Torrey wrote.
Following the Times article, several lawmakers demanded an investigation of the alleged breach at the Supreme Court as well as Schenck’s operation, and called for binding ethics rules for the justices.
“It seems that the underlying issue is the absence of a formal facility for complaint or possible investigation of ethics violations,” Sen. Sheldon Whitehouse, D-R.I., and Rep. Hank Johnson, D-Ga., who respectively lead the Senate and House Judiciary courts subcommittees, wrote in a joint letter to the court. The Times investigation “only deepens our concerns about the lack of adequate ethical and legal guardrails at the court,” they continued.
Torrey wrote to the lawmakers that, while Alito had a social relationship with the donors, “there is nothing to suggest that Justice Alito’s actions violated ethics standards.” One of the donors, Gayle Wright, also denied learning the information from Alito, Torrey pointed out.
His letter did not address the legislators’ first question: Is the court investigating Schenck’s claims?
The reverend also said he shared the information with a small circle of advocates, as well as Hobby Lobby’s president, whom he was courting as a donor.
As the Times reported, the evidence for Schenck’s account is not complete: He was not present at the meal between the Alitos and the Wrights. However, in months of examining the minister’s claims, the Times found a trail of contemporaneous emails and conversations that strongly suggested he knew the outcome and the author of the Hobby Lobby decision before it was made public.
In addition, interviews and thousands of emails and other records show how the minister gained access to the court, using faith, favors traded with gatekeepers, and wealthy donors he called “stealth missionaries.”