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Washington Whispers: Ethical Hijinks at the High Court

By Jessie Seigel / Washington, D.C.


Like Claude Raines in Casablanca, Chief Justice Roberts is shocked, shocked!—to find leaks at the Supreme Court

The House Judiciary Committee felt the need to conduct a hearing last Thursday (Dec. 8) addressing recent ethical scandals at the Supreme Court. Good call.


The leak in May of Supreme Court Justice Samuel Alito’s draft opinion in Dobbs caused outsized outrage at the Court. The Court’s plan to overturn Roe v. Wade and eviscerate women’s constitutional right to an abortion had been prematurely outed. Chief Justice John Roberts indignantly decried the leak as a “singular and egregious breach of trust that is an affront to the court.” And Roberts directed the Marshal of the Supreme Court to launch an investigation into who had leaked it. In doing so, Roberts’ professed concern over the “betrayal of the confidences of the Court.”


Why is it important to remind ourselves of Chief Justice Roberts’ noisy indignation over the Dobbs leak?


Because when evangelical Rev. Robert Schenck told Politico in July that he had been informed of the 2014 decision authored by Justice Alito in another controversial case, Hobby Lobby, by a donor who dined with Alito and his wife weeks before the Court announced it—Roberts did nothing. (In Hobby Lobby the Court decided that corporations could, on religious grounds, refuse to provide health insurance covering contraception.)


In fact, the Chief Justice knew about the allegation long before Schenck revealed it to the press. After Roberts opened the investigation into the Dobbs leak, Schenck sent a letter to Roberts in July, stating in part: "Considering there may be a severe penalty to be paid by whoever is responsible for the initial leak of the recent draft opinion [Dobbs], I thought this previous incident [the Hobby Lobby leak] might bear some consideration by you and others involved in the process."


Where was Roberts’ indignation at the ethical transgression alleged in Schenck’s letter? Nowhere to be found. And what investigation did the Chief Justice launch in reaction to that allegation? None.

Chief Justice Roberts apparently is only interested in hiding the Court’s blemishes. But trying to keep the court’s dirty linen from being aired in public makes it no less dirty.


Given Roberts’ inaction, it has fallen to Congress to investigate the Schenck allegations.


The Rev. Robert Schenck testifying before the House Judiciary Committee
The Rev. Robert Schenck testifying last week before the House Judiciary Committee about alleged actions by Supreme Court justices

On Thursday (Dec. 8), Rev. Schenck, former head of the conservative evangelical group Faith & Action, testified under oath pursuant to a subpoena before the House Judiciary Committee. Schenk said that his foreknowledge of the Hobby Lobby ruling was the fruit of his influence campaign called “Operation Higher Court” in which he recruited wealthy couples to act as “stealth missionaries.” Their assignments: get close to the Court’s conservative justices.

Schenck testified: “Our overarching goals were to gain insights into the conservative justices’ thinking and to shore up their resolve to render solid, unapologetic opinions, particularly against abortion.” The evangelical Reverend added, “I believe we pushed the boundaries of Christian ethics and compromised the high court’s promise to administer equal justice. But I’m also conscious we were never admonished for the type of work our missionaries did.”

Justice Alito acknowledged in a statement issued by the Court that he and his wife have a social friendship with the donor and her husband that Schenk referenced, and had dinner with them. But Alito denied that he revealed to them in advance the 2014 Hobby Lobby decision. Backing Alito, Republicans on the Judiciary Committee have tried to dismiss Schenck’s testimony as an effort by Democrats to smear the Justice with unsupported hearsay.

However, according to the Washington Post, Schenck’s contemporaneous emails and conversations indicate that he knew the case’s outcome in advance—and that his Operation Higher Court was a years-long effort for conservative activists to “ingratiate themselves with justices via donations to the Supreme Court Historical Society.”

Alito’s confirmation or denial of the alleged leak is beside the point. An allegation that a Justice leaked a decision to individuals with a specific interest in the outcome warrants an investigation to determine whether or not the leak occurred. And certainly, the undue influence intent admitted by Schenck is more serious than a leak like that in Dobbs, which was presumably done by someone at the Court who disagreed with the decision and wanted to warn the public.

The Supreme Court’s Questionable Ethics

The coziness of certain justices with those who have interests adjudicated by the Court is hardly new.

There is an ethics code binding lower-court judges that requires them to recuse themselves—to disqualify themselves from judging a case—if there is a potential of a conflict of interest or of a lack of impartiality.

Supreme Court Justices are not bound by that code of conduct, but under federal statute, they are prohibited from hearing cases in which their spouses have an “interest that could be substantially affected by the outcome of the proceeding.” The statute also states they are to disqualify themselves in any proceeding in which their “impartiality might reasonably be questioned.” However, there is notably no enforcement mechanism.

Chief Justice Roberts has stated that justices refer to the law but make their own ethical calls. Given the propensity of some current justices—Samuel Alito and Clarence Thomas in particular—to ignore that law and apply instead their view that the ends they personally desire justify all means, justices should not be assumed capable of making their own ethical calls in good faith.

Speaking to the famously right-wing Federalist Society in 2015, Alito said of stare decisis, the legal expression for precedent: “It is a Latin phrase. It means to leave things decided when it suits our purposes.” He went on to say, “It’s not difficult for a judge to make the stare decisis inquiry come out however the judge wants it to come out.” These are not the words of an ethical judge with a with a particular judicial philosophy, but rather, capture the cynical approach of a political partisan.

As far back as 2008, Justice Thomas attended and gave a speech to a private conference of major conservative donors sponsored by the billionaire industrialist Koch brothers in Palm Springs, Calif. Thomas’s expenses for the conference were paid for by the Federalist Society.

Such connections should have resulted in Thomas recusing himself from the Supreme Court’s consideration of Citizens United vs. Federal Election Commission. But Thomas participated and was part of the majority that struck down restrictions on political spending by corporations.

In 2011, Alito and Thomas flaunted their partisanship by attending fundraisers organized by billionaire GOP donor Charles Koch to coordinate arch-conservative political strategy.

Justice Thomas’s wife, Ginni Thomas, was busily involved in promoting the overthrow of the 2020 election. Both the ethics law addressing conflict of interest and that concerning a spouse with an interest in the outcome of a case very clearly necessitated Thomas’ recusal from participation in the Donald Trump-related January 6, 2021 insurrection cases that came before the Court.

But Thomas not only declined to recuse himself, his was the sole dissent from the decision to grant the January 6 House Committee access to Trump’s White House records. These records contained text messages between Ginni Thomas and White House Chief of Staff Mark Meadows, in which she urged the overturn of the 2020 election.

Justice Thomas continues to this day to thumb his nose at ethical norms. In Moore v. Harper, argued before the Supreme Court just last week, state and national Republicans advanced, under their contrived independent state legislature theory, that state legislatures have the exclusive power to run federal elections. The Supreme Court’s adoption of this theory would permit state legislatures to overturn the results of democratically determined elections, with no role for oversight by state courts. Partisan state legislatures would have sole power over voting laws, congressional redistricting, and perhaps even the selection of presidential electors as well as certification of election winners. If this theory is embraced by the Court, it will be another nail in the coffin of democracy.

According to Harvard Law School professor Laurence Tribe, Thomas’s spouse, Ginni, as an active participant in an attempt to use something like the independent state legislature theory, had an interest in this case, necessitating a Thomas recusal. But, as usual, Thomas did not recuse himself.

So much for honorable self-determination on questions of ethics.

In an address at Notre Dame in the fall of 2021, Alito complained about criticism of the Court’s over-reliance on the “shadow docket” (unsigned orders that the Court issues without full briefing or argument): “The catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods.” Alito’s words unwittingly revealed a truth about his own compromised judicial ethics as well as those of Justice Thomas.


Is There a Cure for the Court’s Ethical Malady?

The odds of fixing the Court’s ethics problem are not good.

Impeachment is impractical and would likely be seen as an extreme measure and portrayed as partisan.

Adding ethical justices to counterbalance the power of the ethical miscreants—if it could be accomplished—would be a quick fix. And perhaps in democracy’s current crisis such a fix is warranted. It does, however, have the downside that Republicans would likely add additional right-wing justices of their own if or when the Republicans again gain control of the Senate.


New York Rep. Mondaire Jones, a leader on Supreme Court reform, was joined by other Democratic Representatives in proposing the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would establish a binding code of conduct for the Supreme Court. And, in a letter to the Democratic Congressional leadership, the legislation’s proponents urged inclusion of the Act in upcoming must-pass legislation before the end of this congressional term.


This proposed law would require justices to follow the same disclosure standards regarding gifts, travel and income as members of Congress; establish enforceable recusal criteria aimed at the Court’s recent ethics scandals; require parties before the Court to disclose lobbying and expenditures in support of a justice’s nomination, confirmation or appointment; and require parties filing amicus (friend of the court) briefs to disclose their major source of funding.


These measures would go a long way toward reestablishing the Supreme Court’s propriety.

One problem, though. The Supreme Court is the highest court in the land, the final legal arbiter. Who would be responsible for enforcing this “binding” code of ethics?


Harvard Law’s Lawrence Tribe told MSNBC that the ethics laws currently on the books “and anything else anyone has come up with” cannot be enforced directly. Tribe said, “The Chief Justice can’t enforce it. It’s very unlikely that the Justice Department could enforce it.”


Tribe proposed that, instead, legislation be focused on those “outside the Justices’ chambers who are exerting improper influence.” In Tribe’s view, this would entail requiring their families and friends to report all of their outside sources of income and influence. Added Tribe, “Anyone who meets with a justice should be under an obligation, enforceable by criminal law, to at least report every such meeting.”


Tribe’s idea is a good one. It is a pity that there is not enough time between now and the Republican takeover of the House for such legislation to be written and passed. But when, in the future, there is some opportunity, that law will hopefully be pointed directly at those who wine and dine justices like Alito and Thomas.


 

Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.


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