Justice Samuel Alito has made a big show of being horrified that the Dobbs v. Jackson Women’s Health Organization opinion, which overturned Roe v. Wade, had been leaked to Politico in May, more than a month before it was officially announced. He called the leak a “grave betrayal” and a “shock” that made the conservative justices “targets for assassination.”
Chief Justice John Roberts ordered an investigation into the leak at the time, and Republicans in Congress heavily suggested that a liberal leaked the decision in hopes that the public outrage would change one of the conservative justices’ minds. Sen. Ted Cruz (R-Texas), the morning after the leak, immediately blamed it without evidence on “some angry left-wing law clerk” and said such a breach of trust had never happened in Supreme Court history.
On Saturday, the New York Times dropped an explosive report that suggests that Cruz may not be exactly right. The story alleged that Alito leaked the Burwell v. Hobby Lobby birth control decision to evangelical Christian donors over dinner in 2014. (The court ruled in that case that Christian-run companies like Hobby Lobby could object to covering birth control in their health insurance plans, because they believe—without evidence—that some birth control is akin to abortion.) A former anti-abortion activist-turned-whistleblower said he gave this information to Roberts in a letter this summer to aid in the leak investigation, and that Roberts did nothing. The whistleblower, Rev. Robert Schenck, then provided the letter to the Times, which said it had reviewed “a trail of contemporaneous emails and conversations that strongly suggested [Schenck] knew the outcome and the author of the Hobby Lobby decision before it was made public.”
According to the Times:
In early June 2014, an Ohio couple who were Mr. Schenck’s star donors shared a meal with Justice Alito and his wife, Martha-Ann. A day later, Gayle Wright, one of the pair, contacted Mr. Schenck, according to an email reviewed by The Times. “Rob, if you want some interesting news please call. No emails,” she wrote.
Mr. Schenck said Mrs. Wright told him that the decision would be favorable to Hobby Lobby, and that Justice Alito had written the majority opinion. Three weeks later, that’s exactly what happened. The court ruled, in a 5-4 vote, that requiring family-owned corporations to pay for insurance covering contraception violated their religious freedoms. The decision would have major implications for birth control access, President Barack Obama’s new health care law and corporations’ ability to claim religious rights.
Alito and Wright have both denied the Times report. Schenck said he decided to come forward with the information because he realized what he did—leveraging access to the conservative justices to raise money for his nonprofit—“was wrong.” His views have also shifted on abortion rights in recent years, and he now considers himself a “progressive evangelical leader.”
This report doesn’t prove, but does heavily suggest, that Alito may have been the Dobbs leaker, as well—or at the very least, that his condemnation of the leak was all a wildly hypocritical, sanctimonious performance.
Trust in the Supreme Court right now is at a historic low, as the conservative justices joke about abortion at right-wing galas and, uh, refuse to step down despite being married to people who literally tried to overturn a U.S. presidential election. The institution, at this point, is illegitimate and embarrassing. And it will come as a shock to no one that all the Republicans who demanded for months that we hunt down the Supreme Court leaker are radio silent now that signs are pointing toward one of their own.
NARAL Pro-Choice America called for an investigation on Saturday in response to the Times story. “Today’s admission by a longtime anti-choice activist underscores the long overdue need for meaningful Court reform and a Senate Judiciary Committee investigation into how he had access to this decision,” NARAL President Mini Timmaraju said in a statement. “The anti-choice movement has a long history of extremist and unethical behavior, and these newest revelations are proof that their long campaign to influence the Court worked.”