Arkansas Democrat-Gazette

Lawmakers urge further look at high court

- JODI KANTOR

Lawmakers are demanding further investigat­ion at the Supreme Court and renewing their calls for binding ethics rules for the justices, after allegation­s that a landmark 2014 contracept­ion decision was prematurel­y disclosed through a secretive influence campaign by anti-abortion activists.

“The first step to recovery is to admit you have a problem,” Sen. Sheldon Whitehouse, D-R.I., wrote on Twitter. “At SCOTUS, the problems run deep.”

A New York Times report published Saturday chronicled yearslong efforts by the Rev. Robert Schenck, an evangelica­l minister and former anti-abortion leader, and donors to his nonprofit to reach conservati­ve justices and reinforce anti-abortion views. In 2014, he said, he obtained advance word of the outcome and the author of the decision in Burwell v. Hobby Lobby, a major case about contracept­ion and the religious rights of corporatio­ns.

That decision — like the one leaked this spring overturnin­g the right to abortion — was written by Justice Samuel Alito. Schenck said he learned the Hobby Lobby details from a donor who had dined with Alito and his wife. The justice and the donor denied sharing the informatio­n.

“We intend to get to the bottom of these serious allegation­s,” Whitehouse and Rep. Hank Johnson of Georgia, who respective­ly lead the Senate and House Judiciary courts subcommitt­ees, wrote in a joint statement.

The revelation­s underscore­d the lack of accountabi­lity mechanisms at the Supreme Court. Unlike other federal judges, the justices are not bound by a written code of ethics; legislatio­n that would create one is pending in Congress.

“While there are many potential solutions, here’s one that the Court could adopt in one minute: OPERATE UNDER THE SAME ETHICS RULES AS EVERY OTHER FEDERAL JUDGE,” Sen. Amy Klobuchar, D-Minn., and another member of the Judiciary Committee, tweeted in response to the Times report.

The new revelation­s came amid an investigat­ion by the court’s marshal into the extraordin­ary leak of the draft opinion in Dobbs v. Jackson Women’s Health Organizati­on, which overturned the constituti­onal right to an abortion, as well as uproar over the role of Ginni Thomas, the wife of Justice Clarence Thomas, in former President Donald Trump’s efforts to reverse the 2020 election results.

A month after Chief Justice John Roberts took the unusual step of ordering the leak investigat­ion, Schenck sent him a letter saying he believed his informatio­n about the Hobby Lobby case was relevant to the Dobbs inquiry. Schenck said he had not gotten any response. When Whitehouse wrote to Roberts about Schenck’s organizati­on, based on earlier reporting, the court sent a brief response that addressed few of the specifics.

Asked about the status of the leak investigat­ion and why the court had not responded to Schenck, Patricia McCabe, a spokespers­on for the court, declined to comment.

Ed Whelan, the head of a conservati­ve legal group who clerked for Justice Antonin Scalia, said on Twitter that, while the private breach alleged by Schenck was a different scenario, “It’s long past time for Chief Justice to provide a report on what Dobbs leak investigat­ion has uncovered.”

Legal scholars say that how to regulate the Supreme Court is a riddle, because independen­ce is part of its design. Even if both houses of Congress agreed on legislatio­n, and even if various separation-of-power debates were settled, the question of enforcemen­t would remain because the court is by definition the highest authority.

“There’s no oversight structure that creates rules for the justices and enforces the rules,” Bruce Green, a law professor at Fordham University, said in an interview. “The fact that Roberts is the chief justice gives him certain administra­tive responsibi­lities, but he’s not the boss of the other justices.”

But other scholars and lawmakers said the Times investigat­ion pointed to the need for new transparen­cy rules. Schenck said his “stealth missionary” operation was premised on the court’s lack of firmly enforced rules. The court is more permeable than it looks, he said, describing how his group reached the justices, including through their faith, meals together and invitation­s to vacation homes.

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