Public trust is the lifeblood of the Supreme Court. A damaging new revelation only adds to the speed with which trust in the court is diminishing. The Senate Judiciary Committee investigation that Sen. Dick Durbin (D-Ill.) announced late Saturday night could help stanch the hemorrhaging.
Earlier that day, the New York Times reported a bombshell — a second breach of Supreme Court confidentiality around an opinion on reproductive rights by Justice Samuel Alito. This one came in 2014, eight years before the one we already knew about — the May 2022 leak of Alito’s draft opinion in Dobbs, the decision that overturned Roe v. Wade.
The alleged 2014 leak was of Alito’s majority opinion in Burwell v. Hobby Lobby Stores, which weakened the right to contraception.
As one of us tweeted, “Fool me once…” In case you’ve forgotten, the rest of the saying goes, “…shame on you. Fool me twice, shame on me.”
The new report of chicanery came courtesy of whistle-blower Rev. Rob Schenck, a one-time anti-abortion leader.
Weeks before the Hobby Lobby decision was announced, Schenck says, he learned from a top donor — who had just eaten dinner with Alito and his wife — that it would come out against contraception. He used the inside information to jumpstart an anti-choice public relations campaign.
Schenck said that he had developed a multi-faceted strategy to obtain leaks “to stiffen the resolve of the court’s conservatives in taking uncompromising stances that could eventually lead to a reversal of Roe.” If true, this inside-outside partnership of corruption among conservatives is a torpedo to the court’s integrity.
Court observers have speculated that the purpose of the Dobbs leak was — like Schenck’s strategy — to keep the other conservative justices from abandoning Alito’s draft overturning Roe. Publicly, Alito called that leak a “grave betrayal.”
Justice Alito, his wife and the alleged donor, Gayle Wright, have all denied Schenck’s Hobby Lobby allegations. The Times was careful to cite gaps in Schenck’s ability to prove his claims, including his “lack of any written record of his conversation with Mrs. Wright.” Yet parts of Schenck’s claims have been corroborated. The Alitos and Wright confirmed the dinner happened. And the Times cites an email from Wright to Schenck the day after the gathering that reads: “Rob, if you want some interesting news please call. No emails.”
The Times also interviewed four people who confirmed Schenck sharing information with them about the leak years ago.
This evidence screamed for investigation — and by investigators outside the court. In May, Chief Justice John Roberts authorized the Supreme Court’s marshal to investigate the Dobbs leak. To date, however, it’s been mostly radio silence on that front. And it’s doubtful that a marshal could put justices under oath. Expect a dutiful report that the chickens were eaten but there were no befeathered foxes in sight.
Sen. Durbin’s committee to the rescue. Congressional investigators administer oaths. Hearings afford the public the opportunity to observe witnesses’ demeanor and judge their credibility. That’s called “transparency.”
In the year of Dobbs, of shadow docket decisions, and of Justice Clarence Thomas refusing to recuse himself in cases that may directly involve his wife, Ginni Thomas, Americans’ confidence in the Court has ebbed to the low water mark.
Just last week, Justice Thomas, joined by Justice Alito, voted unsuccessfully to enjoin the Jan. 6 committee’s subpoena for phone records of Arizona GOP leader Kelli Ward, who joined the Trump campaign’s post-2020 election fake elector scheme. Around that time, Ginni Thomas emailed Arizona Republican legislators, urging them to reverse President Biden’s victory in the state and name a “clean slate of electors.” One might wonder whether Kelli Ward’s phone records include any calls to or from Ginni Thomas.
Four decades ago, New York federal judge Irving Kaufman wrote that “the court’s only armor is the cloak of public trust … When, in the public mind, the court is functioning as an apolitical, wise and impartial tribunal, the people of our nation … even those citizens to whom the results may be anathema have evinced a willingness to abide by its decisions.”
Unfortunately, the converse is also true: If a court acts like what Justice Amy Coney Barrett referred to in September as “partisan hacks,” social order is in jeopardy because obedience to law is in doubt.
“Sunlight,” the future Justice Louis D. Brandeis wrote in 1913, “is said to be the best of disinfectants.” That memorable line appeared in an article entitled, “What Publicity Can Do.” A public hearing in the Senate on Rev. Schenck’s allegations can shed light on the truth, a needed step to restore trust in the Supreme Court.
Dennis Aftergut is a former federal prosecutor who has argued successfully in the Supreme Court.
Laurence H. Tribe is the Carl M. Loeb University Professor emeritus at Harvard University and a professor of constitutional law emeritus at Harvard Law School. He’s also a frequent Supreme Court advocate.