Earlier this year, Justice Samuel Alito at last spoke publicly about the leak of his draft opinion in Dobbs v. Jackson Women’s Health Organization, in which five conservative justices ultimately voted to overturn Roe v. Wade and end the right to abortion care. “It was a grave betrayal of trust by somebody,” a solemn Alito told his audience at the Heritage Foundation. He also excoriated the leaker for placing his life and the lives of his colleagues in jeopardy by making them “targets for assassination” in the weeks that followed.
On Saturday, The New York Times published a bombshell report suggesting that Alito might be less suited to a black robe than a novelty plush hot dog suit. In it, a prominent former anti-choice activist claims that Dobbs was not the first leak of a Supreme Court case with an Alito-adjacent outcome. In 2014, says the Rev. Rob Schenck, a fellow anti-choice activist named Gayle Wright tipped him off that Burwell v. Hobby Lobby, a pending case about exempting “religious” corporations from their legal obligations to pay for employees’ contraceptive care, would come down in Hobby Lobby’s favor, and that Alito would write the opinion. Wright allegedly told Schenck this the day after enjoying a private dinner with none other than Alito and his wife, Martha-Ann, and three weeks before the opinion was released.
“Rob, if you want some interesting news please call. No emails,” Wright wrote.
A letter to Chief Justice Roberts that the NYT has had for months accuses Justice Alito of leaking the outcome of the Hobby Lobby decision to anti-abortion donors who dined at his house. Contemporaneous emails corroborate the story; Alito denies it. https://t.co/KoA7q6XN5l pic.twitter.com/PgBzoTcWpW
— southpaw (@nycsouthpaw) November 19, 2022
Schenck, who has since had an ideological change of heart, has spoken to other outlets about the years he spent recruiting wealthy conservatives like Wright—“stealth missionaries,” he called them—to become part of the justices’ inner circles. He coached Wright to donate to the Supreme Court Historical Society, for example, and to buttonhole justices at Society events about the importance of “biblical truth” whenever they had the opportunity. “See a justice—boldly approach,” Schenck urged.
The Times’s reporting, however, lays bare just how successful this effort was: The Wrights shared meals with Justices Alito, Antonin Scalia, and Clarence Thomas and their families, and hosted the Alitos at their vacation home in Jackson Hole. They were invited to a private birthday party for Justice Antonin Scalia, with whom Wright’s late husband often went hunting. Schenck was invited to pray with Scalia and Thomas in chambers about, among other things, preserving the “sanctity of human life.” The Hobby Lobby leak, in other words, was less a coup for the conservative legal movement than it was the product of careful planning, hard work, and deft execution.
The principals in this story, as you might guess, have vociferously denied its substance. Through a spokesperson, Alito acknowledged maintaining a “casual and purely social relationship” with Wright, but called the suggestion that he revealed the Hobby Lobby outcome “completely false.” Wright, for her part, told the Times that the “news” she was so excited to share with Schenck was that she’d gotten sick at the dinner in question, and that Alito drove her and her husband back to the hotel. She apparently did not tell the Times why “coming down with a tummyache and getting a lift from a sitting Supreme Court justice” was information that was simply too sensitive for her to relay by email.
Legit hilarious: “When I sent a cryptic email promising ‘good news’ after a private dinner with a Supreme Court justice at which I had promised to try to find out the outcome of a case, actually the ‘news’ was that uhhh Alito gave us a ride home” pic.twitter.com/vsfMEoFtOh
— Jay Willis (@jaywillis) November 19, 2022
The Times’s story is a lot of things: wild, gross, and also, given the howling chorus of right-wing morons who have called for the prosecution and punishment of anyone would would have the temerity to leak the outcome of a Supreme Court case, fucking hilarious. Several months ago, Schenck wrote a letter detailing his allegations to Chief Justice John Roberts, who had expressed outrage after the Dobbs leak and vowed to conduct a thorough investigation into its origins. I suspect the Court’s most diligent norms defender is going to have to come up with some awkward answers to uncomfortable questions very soon.
It’s important, though, to emphasize why this story is so wild and gross: After all, the gladhanding and check-writing and fancy-event-attending it describes happen all the time in Washington. For savvy Republican politicians, forming close friendships with mysterious deep-pocketed ideologues like Wright is not some front-page scandal. It’s a quasi-mandatory part of career development.
The official position of Alito and his colleagues, however, is that they are not Republican politicians—that as Supreme Court justices who have sworn an oath to uphold the rule of law, they work above the grimy partisan fray, and their rulings are thus entitled to respect and acceptance even among those who disagree. As the Court’s approval rating continues to nosedive, Alito has taken doth-protest-too-much exception to the suggestion that the institution’s legitimacy is in any sort of jeopardy. “Everyone is free to criticize our reasoning, and to do it in strong terms,” he said last month. But, he continued, “to say that the Court is exhibiting a lack of integrity is something quite different. That goes to character.”
The Hobby Lobby leak story is only the latest bit of evidence that Alito’s purported distinction here is and has always been meaningless, embarrassing horseshit—part of a transparent effort to repackage policymaking by judicial fiat as the product of anodyne legal process. The Court’s 6-3 conservative supermajority makes it the most important source of right-wing political power in America today, and the life tenure its members enjoy protects them from ever facing consequences for cheerfully abusing it. Alito is and has always been what he has long insisted he is not: a loyal Republican foot soldier who happens to work across the street from the Capitol, instead of inside it.