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Senior Democratic lawmakers demand answers on alleged Supreme Court leak

POLITICO 11/21/2022 By Josh Gerstein

Two senior Democrats in Congress are demanding that Chief Justice John Roberts detail what, if anything, the Supreme Court has done to respond to recent allegations of a leak of the outcome of a major case the high court considered several years ago.

Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.) are also interested in examining claims about a concerted effort by religious conservatives to woo the justices through meals and social engagements. They wrote to Roberts on Sunday, making clear that if the court won’t investigate the alleged ethical breaches, lawmakers are likely to launch their own probe.

The pair of lawmakers also criticized the high court’s response to a letter they sent Roberts in September, seeking information about the court’s reaction to reports in POLITICO and Rolling Stone about a yearslong campaign to encourage favorable decisions from the justices by bolstering their religiosity.

A Supreme Court ethics attorney replied on Roberts’ behalf earlier this month, recounting some of the court’s policies and practices in the area, but offering no specifics about the lobbying drive.

“A response pointing out the existence of rules is not responsive to questions about whether those rules were broken,” Whitehouse and Johnson wrote in their new letter Sunday, which was obtained exclusively by POLITICO. “It seems that the underlying issue is the absence of a formal facility for complaint or investigation into possible ethics or reporting violations. …. If the Court, as your letter suggests, is not willing to undertake fact-finding inquiries into possible ethics violations that leaves Congress as the only forum.”

A Supreme Court spokesperson did not immediately respond to a message Sunday evening seeking comment on the letter.

The lawmakers said their latest missive to Roberts was triggered in part by a report Saturday in the New York Times about a former anti-abortion activist’s claim that he got advance word about the outcome in 2014 of a case of acute interest to social conservatives. The case, Burwell v. Hobby Lobby, led to a ruling written by Justice Samuel Alito that religious owners of closely held businesses did not have to comply with all of the Affordable Care Act’s requirements for contraception coverage.

Rev. Rob Schenck, a former evangelical minister who has since switched denominations, said he was alerted to the outcome of the case and Alito’s authorship of the opinion several weeks before the opinion was released by the court. Schenck said his information came from a dinner a wealthy couple had with Alito and his wife, Martha-Ann Alito, at the Alitos’ Virginia home after making significant donations to the Supreme Court Historical Society.

Alito adamantly denied that he or his wife were responsible for any leak. One member of the couple who dined with the Alitos that night, Gayle Wright, has also denied she conveyed the outcome of the case to Schenck. Her husband, Ohio real estate developer Don Wright, died in 2020.

POLITICO investigated the alleged leak for several months and was unable to locate anyone claiming direct knowledge of a premature disclosure of the outcome of the Hobby Lobby case from Justice Alito or his wife. However, there is circumstantial evidence that Schenck had, or believed he had, advance word about the outcome of the case and who was writing it.

Schenck wrote to Roberts in July, conveying word of the alleged leak eight years ago. He said the court might wish to evaluate that episode as it considers how to deal with the far more publicized disclosure in May by POLITICO of a draft Alito opinion overturning Roe v. Wade.

The court has not commented on Schenck’s letter or whether any investigation was conducted into the 2014 leak, but the new letter from Whitehouse and Johnson asks Roberts to explain whether the court has “reevaluated any of its practices, procedures, or rules related to judicial ethics, or the justices’ receipt and reporting of gifts and travel” as a result of the recent news reports and Schenck’s letter.

Whitehouse and Johnson also expressed concern that some donors to the Supreme Court Historical Society, a nonprofit educational organization with close ties to the court, have tried to use the society’s events to cozy up to the justices.

“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?” the lawmakers asked.

A society official did not immediately respond to a request for comment Sunday evening.

Whitehouse, a strident critic of what he contends is politicization of the Supreme Court, is positioned to pursue those concerns in his capacity as chair of the Senate Judiciary Committee’s Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights

Johnson heads up a similar subcommittee on the House side, but his ability to probe the matters may soon be limited with Republicans set to take over control of House committees in January due to the outcome of the midterm elections earlier this month.

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