“It is unacceptable that members of the highest court in the land are exempted from the judicial code of ethics when wealthy special interests are spending millions of dollars in dark money to influence the Court’s decisions.”
Senate Majority Whip, Richard Durbin (D-Ill), November 19th.
“The first step to recovery is to admit you have a problem. At SCOTUS, the problems run deep.”
Tweet from Senator Sheldon Whitehouse (D-RI), November 19th.
“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.”
Tweet from Senator Amy Klobuchar (D-MN), November 19th.
My November 9th Is the United States Supreme Court a Legitimate Tribunal? blog asked the question whether the current John Roberts Court is more legitimate than the Supreme Court panels that decided cases (like Roe v Wade) his Court is reversing? Roberts claimed that people were crossing a line in challenging the legitimacy of his Court. Really? My conclusion: the current Supreme Court is delegitimizing itself by failing to uphold the legitimate rulings of other incarnations of the Court.
While I touched on the bizarre ethical lapses of the Trump reconfigured Court in that blog – particularly involving Justice Clarence Thomas in cases against Donald Trump and his administration regarding the “stop the steal” movement and the Capitol assault, where his wife was an activist – today I would like to focus on how conservative members of that Court have openly courted donors to their “charitable” causes… donors with a very open and specific agenda to impose extreme religious views, contrary to the vast majority of American’s stated values, through this pattern of influence. All three of the above Senators serve on the Senate Judiciary Committee; Durbin is Chair.
To understand this ethical quagmire, you have to go back to an incident in 1992 when then-Governor (D-Ark) Bill Clinton was a presidential candidate. Clinton was apparently starting a jog in a Buffalo, NY suburb when he was approached by three individuals seeking the candidate’s autograph. Instead, as members of the prolife Operation Rescue, they presented Clinton with a deceased fetus (17 to 9 weeks old) to illustrate what abortion looked like. They were ultimately arrested. One of those protestors, was Reverend Robert Schenck, a fundamentalist evangelical activist, who, decades later, would raise at least a purported $30 million to fund a faith-based non-profit seemingly dedicated to influencing the Supreme Court towards conservative rulings.
Over the years, Schenck embraced many Christian fundamentalist beliefs, from opposing abortion, to penning works against laws supporting LGBTQ issues and even espousing the burning of the Qur’an. Schenck’s opinions have vacillated as well. While there are stringent laws governing elected members of Congress and their staff, strict codes of conduct and serious criminal sanctions on the operations of the Executive Branch of government, and even a detailed code of ethics applied to almost all federal judges, Schenck noted a glaring hole where there was a complete lack of any statutory limitation or ethical code of conduct: the United States Supreme Court. Once appointed (for life), a mentally and physically competent Supreme Court Justice cannot be removed from office except by Congressional impeachment, which we know today is completely driven by partisan politics. There are no laws or codes of ethics to hold influencers of that Court accountable… and no canons of ethnics imposed on that Court at all – theoretically to enhance the Court purported neutrality. That intention has actually been reversed.
Schenck’s efforts have been wildly successful. Operating in a D.C. building across from the Court itself, this non-profit found ways to identify the favored pastimes, charitable bents and daily habits of each conservative Supreme Court justice. They were able to find compatible couples among donors to befriend such justices and their wives. Invitations to special dinners, contributions to a Court-related historical charity, trips to expensive vacation venues and just-plain-socializing were at the tip of that non-profit’s spear. All donor-couples were carefully prepared to advance conservative causes in those social settings. Principals of that non-profit purportedly even held prayer sessions in several conservative justices’ formal offices. The connection between conservative justices and this faith-based non-profit turns dark, creating an even darker, delegitimizing stain on the John Roberts Court.
You may have read that opinions from two recent major Supreme Court decisions – the 2014 Burwell v. Hobby Lobby case (in which corporations with religious beliefs to the contrary were not required to provide contraceptive services in their corporate medical plans) and the 2022 Dobbs v. Jackson Women’s Health Organization (which reversed Roe v. Wade) – were leaked well in advance of the final ruling. Both cases were the priorities for the religious Christian right. The majority decisions in both cases were written by Justice Samuel A. Alito Jr.
Writing for the November 11th New York Times, Pulitzer Prize-winning journalist Jodi Kantor: “A New York Times report … chronicled yearslong efforts by … 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…
“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 J. Trump’s efforts to reverse the 2020 election results.
“A month after Chief Justice John G. Roberts Jr. took the unusual step of ordering the leak investigation, Mr. Schenck sent him a letter saying he believed his information about the Hobby Lobby case was relevant to the Dobbs inquiry. Mr. Schenck said he had not gotten any response. When Mr. Whitehouse wrote to Chief Justice Roberts about Mr. 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 Mr. Schenck, Patricia McCabe, a spokeswoman for the court, declined to comment.” Schenck seems to be moderating his stance on how faith should influence government.
Rev. Schenck also has nothing to fear, so his willingness to cooperate could not subject him to any civil or criminal liability. After all, there are no restrictions against non-parties merely socializing with members of the Court… and no ethical restrictions of any kind on members of the Court. Still, Justice Alito took steps to deny that he or his wife in leaked those decision. However, these revelations, with escalating evidence of the truth of these allegations, not only smell bad… they stink. While Congress could attempt to impose judicial ethnics on the Supreme Court, the Court might not necessarily be bound by such rules. And if the Court does not create its own rules…. This secretive influence campaign challenges the Court’s integrity and illustrates its lack of transparency and accountability.
I’m Peter Dekom, and evidence that delegitimizes the Roberts Court is mounting, from a ripple to a possible tsunami.
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