Lawmakers demand further investigation in the Supreme Court and renew their call for binding ethical rules for the judges, following allegations that a landmark 2014 birth control decree was prematurely revealed by a covert influence campaign by anti-abortion activists.
“The first step to recovery is admitting you have a problem,” said Rhode Island Democrat Senator Sheldon Whitehouse. wrote on Twitter. “With SCOTUS, the problems run deep.”
A DailyExpertNews report published Saturday details the long-standing efforts of Rev. Robert L. Schenck, an evangelical minister and former anti-abortion leader, and backers of his nonprofit organization to reach out to conservative judges and bolster anti-abortion views. In 2014, he said, he was given advance notice of the outcome and authorship of the decision in Burwell v. Hobby Lobby, a landmark case involving birth control and corporate religious rights.
That decision — like the one leaked this spring that overturned abortion rights — was written by Judge Samuel A. Alito Jr. Mr Schenck said he learned the details from the hobby lobby from a donor who had dinner with Judge Alito and his wife. Both the judiciary and the donor denied sharing the information.
“We intend to get to the bottom of these serious allegations,” Mr. Whitehouse and Representative Hank Johnson of Georgia, who lead the House Senate and Judiciary subcommittees, respectively, wrote in a joint statement.
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The revelations underscored the lack of accountability mechanisms at the Supreme Court. Unlike other federal judges, the judges are not bound by a written code of ethics; legislation that would create one is pending in Congress.
“While there are many possible solutions, here is one that the Court could adopt in one minute: WORK BY THE SAME ETHICAL RULES AS ANY OTHER FEDERAL JUDGE,” Senator Amy Klobuchar, the Minnesota Democrat and another member of the Judiciary Committee , tweeted in response to the Times report.
The new revelations came during an investigation by the court marshal into the extraordinary leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion, as well as uproar over the role of Judge Ginni Thomas. 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. had taken 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 investigation. Mr. Schenck said he had not received a response. When Mr. Whitehouse wrote to Chief Justice Roberts about Mr. Schenck’s organization, the court, based on previous reports, sent a short response that covered some of the details.
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.
Ed Whelan, the head of a conservative legal group who worked for Justice Antonin Scalia, said on Twitter that while the private breach alleged by Mr. Schenck was a different scenario, “it’s been a long time since the Chief Justice issued a report on what the Dobbs leak investigation uncovered.”
Legal scholars say it’s a mystery how the Supreme Court should be regulated, as independence is part of its design. Even if both chambers of Congress agreed on legislation, and even if several debates about separation of power were settled, the issue of enforcement would remain, because the court is, by definition, the supreme authority.
“There is no oversight structure that makes rules for the judges and enforces the rules,” Bruce A. 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 is not in charge of the other justices.”
But other scholars and lawmakers said the Times investigation pointed to the need for new transparency rules. Mr. Schenck said his “stealth missionary” operation was based on the lack of rigorously enforced rules by the court. The court is more permeable than it appears, he said, describing how his group reached the judges, including through their beliefs, shared meals and invitations to vacation homes.
Louis J. Virelli III, a professor at Stetson University College of Law, said in an interview that a law requiring judges to disclose who they are meeting with, especially parties that may have an interest in a decision, would be constitutional and that it might restore some of the public’s confidence in the institution.
While the country’s highest court is supposed to self-monitor, he said, “we are beginning to see that the court’s independence clashes with public concerns about its legitimacy.”
He added: “If the public feels that the judges are not doing their part, the cost to the judges will be more transparency.”
