In This Episode
On Saturday, the New York Times published a piece about a former anti-abortion leader’s claim that he was told the outcome of a 2014 Supreme Court case before it was public. The story offers a glimpse at a years-long campaign by conservative activists to obtain access to and ingratiate themselves with Supreme Court justices. It’s really wild and really disturbing– so Leah, Kate, and Melissa convene for an emergency episode to discuss.
Show Intro Mr. Chief Justice, may it please the court. It’s an old joke but when an argued man man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Melissa Murray Welcome back to Strict Scrutiny, your podcast about the Supreme Court and all the tea that spills from it where your host. I’m Melissa Murray.
Leah Litman I’m Leah Littman.
Kate Shaw And I’m Kate Shaw. And listeners, we are bringing you this off schedule special kind of break class emergency episode. Because, Leah.
Leah Litman It turns out our boy Sam Alito is aiming to be on the naughty list this year.
Melissa Murray On the naughty list? He is the naughty list.
Leah Litman Yeah. Santa’s checking that list. He’s renaming it Sam Alito’s list. So let’s just get right into it. The New York Times fantastic reporters Jodi Kantor and Joe Becker released a story about a leak of a Supreme Court opinion that was authored by Samuel Alito that undermined women’s reproductive freedom and demolished precedent in the process.
Kate Shaw And no, we are actually not talking about the leak of jobs. Rather, Kantor and Becker report on a separate episode, and that is how Reverend Rob Schenck, a former anti-abortion activist who also used to run an evangelical nonprofit, has come forward to say that he was informed in advance of the outcome of Hobby Lobby, the 2014 decision authored by Justice Samuel Alito that invalidated the Affordable Care Act’s requirement that employers offer health insurance for contraception to their employees, and that he was informed of the outcome of that case before the opinion came down.
Melissa Murray Now, to be clear, that’s not all there is to the story by far. So we’re going to talk about the leak portion of the story before we move on to the larger and completely galling and kind of a little bit buried story that Cantor and Becker also detail, which is about a coordinated influence and access campaign that conservative operatives basically waged in order to get access to conservative justices on the Supreme Court and perhaps even influence them or excuse me, stiffen their resolve to stay the course on certain core conservative issues like reproductive freedom. So here’s the gist. In early June 2014, an Ohio couple who donated a ton of money to Reverend Schenck’s efforts to lobby the Supreme Court had dinner with the Alito’s Samuel, our boy and his wife, Martha. And after the dinner, the next day, one member of the couple, Mrs. Wright, contacted Reverend Schenck with this email. Rob, if you want some interesting news, please call. No emails. This is definitely what you say when everything is totally on the up and up, like let’s take this offline, let’s get a signal chat. Like, This is wild. This is like Stewart Rhodes talking to the Oath Keepers on January six. Like, go to a local library. Sign out of Google. Do everything on signal. Like, I mean, this is not normal in the way you communicate with people. No.
Leah Litman And it’s also basically an invitation to depose me, right. When you’re just announcing, like I’m about to say something that I cannot say over email. Right. And the next question is and and what is it that you couldn’t say over email?
Melissa Murray Well, Schenck says that what was the tone and topic of this offline conversation was that Mrs. Wright confided to him what the decision on Hobby Lobby would be and that it would be favorable to Hobby Lobby and that Justice Alito would be authoring the majority opinion. And of course, all of this turned out to be true. The question, of course, is from whom did she hear that the night before when she was having dinner with Justice Alito and his wife?
Leah Litman I mean the answer to every question like that, Melissa, is from here on to eternity. Justice Alito in the study or the dining room with his big fucking mouth. Right. Like that’s the answer.
Kate Shaw In the justice’s dining room upstairs.
Melissa Murray Professor Skincare, in the library.
Kate Shaw Oh, right. Yeah. So we we think, we think we have a suspect. Okay. But but so back to the Hobby Lobby. So it is not just Schencks account, of course, that The Times is reporting, you know, Becker and Cantor do say there are some gaps, but that there is pretty substantial contemporaneous evidence that this leak happened exactly as Schenck details. And here’s what they offer. So The Times interviewed four separate people who said Schenck told them about the breach. There are also emails, not just the call me email, but other emails from June 2014 that reveal Schenck suggesting that he had confidential information about Hobby Lobby and was directing his staff to prepare for victory. In that case, there was also a 2017 email in which Schenck describes the episode that we are talking about and talked about it as one of the most difficult secrets I’ve ever kept. So that was a pretty substantial paper trail.
Melissa Murray We should also say, though, to be fair, Schenck is, I think, somewhat compromised as a witness because he’s he was an anti-abortion activists. Now he’s sort of seen the light, I guess, and he’s changed his mind about some of this. And many conservative commentators over the weekend have sort of noted that, like, perhaps this makes him unreliable in terms of disclosing or reporting these events.
Leah Litman Because if you believe in women’s bodily autonomy you are automatically not credible and cannot be trusted.
Melissa Murray That’s a Deborah Turkheimer book.
Leah Litman But adding to this evidence, Kate, that you surveyed is I think additional substantiating evidence is the explanation that the right’s came up with for the email saying, call me no emails, I’ve got news. So here’s the explanation and I just have to read this because it’s just straight up truly insane. Okay. So The New York Times reports Mrs. Wright said she believed the night in question involved a dinner at the Alito’s home during which she fell ill. She said that the justice drove her and her husband back to the hotel and that this might have been the news she wanted to share with Reverend Schenck. It’s like, I’m sorry that you couldn’t write in an email. Is that the justice drove you home? You know, Reverend Schenck knew you were having dinner with him, so that’s not news or is the thing you immediately needed to tell the reverend that countless interesting news is that you had the squirts like you got diarrhea from the meal. Like, it just it smells like bullshit. And the implausibility of the explanation is, like, at one hand, hilarious, maybe a flex, but on the other it is to me like some evidence that something untoward happened just again, because it’s so unbelievable.
Melissa Murray You really took that all to a lot of levels.
Leah Litman This is my first poop and here’s this is where we are.
Kate Shaw I think the occasion calls for it, Leah. And I do think that that I got sick and that’s what I wanted to convey explanation is all the more implausible because there actually is considerable additional evidence that Mrs. Wright was totally fine putting in writing her interactions of other sorts with the justices. So, for example, the Times reports that Mrs. Wright and her husband watched the Hobby Lobby argument from seats in the courtroom reserved for guests of Justices Scalia and Alito. So she writes this in an email. She says, quote, We were invited to use seats from Nino and Sam. She had written to Schenck days earlier using nicknames, of course, for the justices. Wow. She also wrote. Don and I have been invited to a private party in Virginia to celebrate Nina’s 80th. And in yet another email, quote, Lunch with on Monday. Sam on Wednesday. Dinner record on Monday. Dinner with Maureen on Wednesday. I mean, this person was getting a lot of face time with the justices and their immediate family members. So that’s lunch with Thomas on Monday. Maureen refers almost certainly to Justice Scalia’s widow, Maureen Scalia. So, yeah, I mean, this is a very busy calendar. And again, the point here is that she wrote it all up in email. And so she was not ordinarily kind of concealing these her ordinary interactions with the justices in the way that her bizarre explanation seemed to suggest she might have been.
Melissa Murray Not to put too fine a point under it, we refer to Justice Alito as Sam all the time. But we don’t know him. We don’t. We’re just being totally irreverent and disrespectful. Like she knows them. Like they they definitely get lunch together.
Leah Litman No, when we say Sam is like a Mariah Carey. I’m sorry. I don’t know her kind of vibe.
Melissa Murray Different vibe entirely. So The Times report continues. Justice Alito also appeared to know Mrs. Wright’s views well enough to recommend she attend a lecture at the court by Kelly Shackelford, the president of First Liberty Institute, which frequently litigated religious liberty cases before the justices. Sam told us that Kelly is someone we should know. She wrote to Mr. Schenck in 2013. So let’s just reflect on what we’ve learned. Justice Alito Sam has invited these people to the argument to use his seats. He is hooking up with them at dinner parties and having them over to his home. He is also connecting them with ideologically like minded people and some might suggest that all of this. Gestures toward a broader campaign for influence and access. But maybe not. Maybe it’s just something else.
Leah Litman On the other hand, maybe it’s all completely cool.
Melissa Murray Maybe it’s Maybelline. I don’t know.
Kate Shaw Okay. We will definitely pivot to the broader campaign for influence and access.
Melissa Murray We’ll get back to that.
Kate Shaw Yes.
Melissa Murray Put a pin in it.
Kate Shaw Yes. But just to sort of complete the Hobby Lobby episode back in June of this year, 2022 or I guess the letter actually arrived in July. Schenck wrote a letter to Chief Justice Roberts reporting on this Hobby Lobby leak, wrote saying, hey, there was once an opinion authored by Justice Alito, the outcome of which was disclosed prior to the release of the opinion. Maybe that’s relevant to your inquiry into the Dobbs leak. So the letter went to the court and as far as we know, Schenck still has not received any kind of response. So at some point we don’t know exactly when. Schenck clearly took this information to The New York Times, which ran this story over the weekend.
Leah Litman I mean, this brings us to the big question, ladies and gentlemen and nonbinary listeners, have we found the Dobbs Leaker Dares and Cassandra?
Melissa Murray I’m going to guess Justice Alito in the library with the candlestick.
Leah Litman With his little signal chat. I mean.
Melissa Murray Wow.
Kate Shaw Do we need to debut some new nicknames, ladies?
Melissa Murray A-leak-o.
Leah Litman A-leak-to. Right. Like that’s possible twist. You know, that’s one possibility.
Melissa Murray Loose lips, Lito.
Leah Litman That one works.
Kate Shaw Also good.
Leah Litman Yeah. No, I mean, this is. This is where we are. So.
Melissa Murray You know, I will also say we said this before when the leak first happened in May of 2022, everyone at least at first a sort of like the liberals did this and were like, no, that’s not their vibe at all. Like like and they had nothing to gain from it, really. I mean, we always thought it was someone from the conservative camp trying to keep one of the conservative justices on side. And I think this kind of goes to that whole logic. Yeah.
Kate Shaw Now, we should say that Alito issued a denial not of the Dobbs leak, but has issued a denial of Schencks account. So here’s what he said. He said that, yes, he and his wife did share a, quote, casual and purely social relationship and quote with the rights. And he actually didn’t dispute that the two couples eat together on June 3rd, 2014, the night in question. But the justice also said that the, quote, allegation that the rights were told to the outcome of the decision in the Hobby Lobby case or the authorship of the opinion of the court by me or my wife is completely false. I mean, I guess sidebar did anybody actually even accuse Martha Anne of being the source? It’s an interesting denial, but in any event, that’s that’s what we have heard directly from Justice Alito.
Leah Litman And also, like casual and purely social. You’re inviting them to arguments. You’re arranging for them to go to these, you know, speeches. It’s anyways, it’s.
Melissa Murray It’s a little more than casual and purely social.
Leah Litman Does seem a little bit more than casual and purely social. But, you know, just taking the denial at face value, who is more credible? You know, this is the same person, Sam Alito, who called Adam or a story about the Texas abortion order, you know, back in fall of last year, you know, false and inflammatory. You know, this is the man who said in Dobbs, We’re not suggesting there’s a connection between eugenics and abortion, while at the same time suggesting like there is a connection between eugenics and abortion. And it’s like, how many times can people piss on you and tell you that it’s raining? You know, this is one of the problems with the court and the justices undermining their own credibility time and time again. Their opinions through public statements is there will be occasions when the court needs to have some credibility, and they have just utterly squandered it entirely. So apologize in advance. This is an incompletely formed thought and also one that has just sent me boiling into a rage every time I think about it and think about this article. But I feel the need to connect the article to other issues. The Court has decided, and in particular, you know, the death penalty matters that the court has acted on. You know, in the last week alone, the court vacated a stay of execution, declined to block three other executions. So this week, the court greenlighted four executions, all with no explanation or reasoning, one execution that subsequently couldn’t proceed because the state couldn’t carry out the execution when problems arose with this execution protocol, which was the exact reason why the lower court had stayed the execution. And that’s the second time this has happened. And over the last few years, you know, Alito and other members of the court have cleared the way for states to execute people on evidence. That’s frankly not so different than the evidence that he personally leaked the outcome of Supreme Court opinions, you know, last year in Austin versus Ramirez, the Barry Jones case, you know, the court basically condemned a man who multiple courts found there was a reasonable probability to believe his innocent like they condemned him to death on the basis of evidence that is less credible than what is in The New York Times. And it just feels like over the last few years and more, but especially the last few years, the behavior of this institution has been appalling. And we have pointed to different institutional failings, reinstating executions with no explanation, issuing opinions that include utter falsehoods in death penalty cases, and refusing to correct the errors when they’re pointed out to them. And all of this have been signs of an institution in decline and a failed captured institution. And just too often it gets written off or apologize or rationalized away. And this New York Times story, I think, is impossible to write off. And the court is going to be saddled with this from here to eternity. And all of the court’s decisions are going to be, and I think should be understood in this light, you know, as a product of people who are so hellbent on imposing their views on the country that they care nothing about how they get there. Every time I talk about Sam Alito, I’m going to be tempted to say and allegedly Hobby Lobby leaker slash Dobbs leaker, writes Samuel Alito, you know, the guy who was personally dining with conservative activists who shelled out hundreds of thousands of dollars trying to influence him, like those are the people who are making these decisions and it’s impossible, right, not to understand their decisions in light of this.
Kate Shaw Yeah.
Melissa Murray On a lighter note, can you imagine the moment when one Chief Justice, John Roberts, awoke on a Saturday morning to learn that perhaps the entire world now believed that his colleague Sam Alito was actually the Dobbs weaker? I mean, again, John Roberts and the terrible, horrible, no good, very bad day.
Leah Litman And the terrible, horrible, no good, very bad court. I mean, we’re still waiting on that investigation report, you know, Inspector Chief Justice Roberts and.
Melissa Murray Dunn Da dunt ta dunt dunt dunnn don’t not.
Leah Litman And that is never going to be released.
Melissa Murray This investigation is going to be run by the same people who are running the Meghan Markle bullying investigation out of Buckingham Palace we’re never going to find out anything. Like, they are it’s one in the same it’s the same concerted, coordinated effort.
Kate Shaw On another lighter note, if we are asking the justices to do some self-reflection, should we also do some self-reflection of our own? So my question is, have all of our Ginni Thomas segments actually potentially also been Martha and Alito erasure? No insufficient attention to this shadow spouse who actually is an important power player, the Supreme Court.
Leah Litman Maybe.
Melissa Murray Shadow spouse. I like that.
Leah Litman On the other hand, we have no evidence of Martha and, you know, emailing legislators to try to overturn the results of an election. But if and when she does leave a deranged voicemail on Reverend Schenck’s phone saying snitches get stitches, then that might be time to usher in a martha and Alito segment.
Kate Shaw Listeners, this is a reference to a voicemail that Ginni Thomas actually did leave years ago on Anita Hill’s office voicemail. This is a thing that really happened.
Melissa Murray And just to go further down memory lane, do you remember the campaign that conservative media launched to find the Dubs leaker and just started naming random law clerks who worked for Democratically appointed justices, actually Democrat appointed justices. But also just to talk about justice. It’s a Freudian slip, but one that’s meaningful. What if it was all right in front of us the whole time, staring us in the face, and instead we were grabbing cell phones from young lawyers and scaring them and telling them that their prospects in the profession would be nil if they did not fess up to this breach of confidentiality and all of the norms of the Supreme Court. What if the alarm was coming from inside the house?
Leah Litman [AD]
Melissa Murray Okay. Well, enough of this, as some have put it. Nothing Burger of a revelation.
Leah Litman Yeah, because one conservative defender of the court said apparently even private leaks happen all the time. Right. No big deal. Nothing to see here.
Kate Shaw Just that is. I’m just gonna say that’s news to me. I did not realize that that is not the reality.
Leah Litman And I’m still waiting for Sam Alito to dm me the results of some of the cases the court heard in October. So.
Melissa Murray All right. This is all to say that the leak in Hobby Lobby was not the only story. In fact, I’m not even sure it was the story. The other equally, if not more important, part of all of this is about the highly coordinated campaign to influence Supreme Court justices that actually resulted in some individuals, wealthy individuals, securing real access to those justices. So here’s what The Times said. In 2000, Mr. Schenck launched Operation Higher Court. I like that. An attempt to reach the justices directly. The goal, he said in an interview, was to, quote, embolden the justices to lay the legal groundwork for an eventual reversal of Roe by delivering, quote, unquote, unapologetically conservative dissents.
Kate Shaw The Times goes on. Mr. Schenck recruited wealthy donors, encouraging them to invite some of the justices to meals to their vacation homes or to private clubs. He, that is, Schenck, advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who would help give him access, records show. Just take one beat on the Supreme Court Historical Society angle of this story.
Melissa Murray This is the words.
Kate Shaw It is wild.
Melissa Murray Why are you perverting them?
Kate Shaw It’s a it’s this it’s a nonprofit that is ostensibly independent from the Supreme Court, but whose workings and operations are inextricably intertwined with both the physical building of the court and the institution. So it’s the historical society that runs the gift shop on the first floor of the Supreme Court. They hold these dinners that justices attend, and so do donors and benefactors. And this was an important kind of venue in which access was sought and given. And the justices are described as potentially being more comfortable at these dinners, assuming the historical society has vetted donors. And so they’re actually an incredibly important player in the story that The Times broke this weekend.
Leah Litman Yeah, I mean, it made me sad because it also made me wonder, like, what other institutions have been compromised or misused or abused, like these nonprofits that are, I think, trying to do good work and are needed. And again, like what other organizations have these people infiltrated in order to accomplish these ends?
Melissa Murray But Leah, it didn’t just end with infiltrating the otherwise anodyne Supreme Court Historical Society.
Leah Litman No. He purchased a building across from the Supreme Court and used it to begin working and get access to the court’s employees to secure information from them and their favor. And just like a beat on this. Right. Part of what this underscores is like part of what is so dangerous about these outside channels of influence to the court is, of course, they are only accessible to the wealthy. Right. These people who can just throw around hundreds of thousands, millions of dollars to buy buildings across from the Supreme Court. Right. To make themselves the largest donors of the Supreme Court Historical Society. This is part of what is grotesque about these means of access. It’s just.
Melissa Murray Some would say that, as some people did on Twitter, that this is simply the same thing as advocates and scholars trying to influence the court with their writings and amicus briefs and articles. And to which I say, I have yet to file an amicus brief and then run to my mortgage broker to set up a loan to purchase a building across from the Supreme Court so that my advocacy brief would hit even harder. Like what? This is insane. And the people excusing this as ordinary business as usual are just batshit.
Leah Litman They are missing something, right? There is something different about speaking to the public, trying to influence the public in like a generally available, generally accessible way, right? Where it is open to everyone. It is accessible to everyone from buying a building and buying your way into organizations that give you access to cultivate relationships again, to invite people to your private clubs and vacation homes that other people cannot do it like this is just different. I’m sorry.
Melissa Murray And there are some other specifics on the stories that are also, I think, actual bombshells and will have real repercussions, blatantly unethical actions about how these groups obtained information, access and influence. So there are the court administrators that Schenck got close to you and who enabled him to get access to the. Justices, the building all of this the seats at argument that they obtained through the connections to particular justices the events and functions that they attended to mingle with the SCOTUS justices. And later how these, you know, personal contacts translated into personal invitations to hang out with the justices at either the donors private vacation homes or at the justices homes themselves. And, you know, Reverend Schenck talked about visiting Justice Scalia and Thomas in chambers where he shaped his prayers with them as political messaging, using phrases like the sanctity of human life to plea for an end to abortion. And it should be said that that part of the story, the part about having prayers in chambers with various justices, was actually earlier reported on by Rolling Stone and later by Politico. And so we talked about that when it happened earlier this year when those stories dropped. But again, this just reiterates this particular factual background that this was happening and no one seemed to think it was untoward.
Leah Litman It makes me wonder, like, why didn’t you know, people think it was untoward? Like, why wasn’t that a bigger deal? And I worry that it’s because or at least in part because like this sort of activity has become normalized because they have so degraded our institutions and undermined our institutions that this doesn’t even cause a stir. And this is just how we expect them to act.
Kate Shaw Yeah. The Times story reveals, I think, a course of conduct that is genuinely scandalous and I think actually is being received as such, which I actually think is really important. And it’s why we’re spending so much time talking about the story now. So, yeah, so there are many, many specifics about the kinds of influence and access that were being cultivated. And so we’ve described a lot of it, but there is yet more in the story. So do read it for yourself. So did the campaign work? Is the question.
Leah Litman Who did the campaign work on? Right. Might be another way of formulating the question. And the answer is the most ethical trifecta at the Supreme Court. Here is what The Times said. Quote, It’s unclear if Mr. Schenck’s efforts had any impact on legal decisions, given that only Justices Alito, Antonin Scalia and Clarence Thomas proved amenable to the outreach done time. Apparently, the chief and Justice Kennedy were polite but standoffish. And one time when Reverend Schenck included a photo of himself with the chief justice and fundraising material, he received a letter basically saying, Knock it off.
Melissa Murray I mean, the gall of some of this I mean, this dude had incredible cheek like Reverend Schenck. Yeah. This is just really just weird and crazy.
Leah Litman I read the story multiple times, and each time at the end, I just kept thinking, what the f did I read like that? That is what I know. No,.
Kate Shaw I think we woke up to a text. It was you basically said that by text on first thing Saturday morning. We like, what the fuck did I just read? So before I read the story that was the framing for me. Yeah.
Melissa Murray It was literally like, oh, oh yeah. Oh.
Leah Litman Yeah.
Melissa Murray Anyways, so basically Sam Alito in real time is revealing everything. And I don’t mean just decisions like again, those are allegations, but he’s actually revealing what people have been saying about the court being broken. He’s revealing this to actually be true to some degree. So leaving aside the question of whether he is a leaker, it’s very clear that this campaign of influence hit in a particular way, because this is not a functioning or functional institution. They are in publicly ostentatious ways, acting as political officials susceptible to campaigns of influence and lobbying and access by ideological fellow travelers. And that’s the story.
Leah Litman Yeah, I think that’s totally right.
Kate Shaw And it raises this question like, what is the point even of briefing and oral argument if at least some.
Melissa Murray Justice Thomas has said that for years.
Kate Shaw Right.
Melissa Murray I’m not kidding. This is why.
Kate Shaw Yeah, no and we and we actually didn’t understand what he was saying and maybe this is, in fact, what he was saying. So if at least some of the justices are being influenced by meetings with people who can buy access and who encourage the justices to help to further these lobbyist’s political agendas, you know, for some of them at least, like it’s just, you know, kind of performance. The public facing piece of it is actually not where the action is. And it’s just like, well, it’s it’s so distressing.
Melissa Murray But but Kate. Yeah, that’s that’s an interesting point. Like, I mean, no one’s suggesting that this campaign of influence changed any minds, like they were all ideological fellow travelers. But what it did perhaps was make their writings, make their decision making just more, I guess, maximalist. Yeah. Like that seems to have been what Schenck was trying to do to sort of stiffen their resolve to write more and more increasingly incendiary dissents. And then as the composition of the court changes, like, they become more and more maximalist majorities.
Leah Litman And I want to say just look another way that this campaign might have mattered, which is even if it didn’t. Again she particular outcomes. I feel like what it helped to do is create an alternative ecosystem or universe where these justices would be given support, plaudits being told, you’re doing good, right, you’re doing the right thing.
Melissa Murray Kris Jenner, it’s the Kris Jenner-ing of the court. You’re doing great, sweetie.
Leah Litman Exactly right. Because the dynamic that people have written about in the past is how, you know, what some people have described as, quote, the greenhouse effect. Right. The justices being susceptible to criticism from, you know, public media, public commentators. And so in order to counteract that. Given that reality skews to a perspective that recognizes that women should have reproductive freedom, right? That like misogyny and racism are a problem. Right. In order to counteract that inconvenient truth, they create this alternative media and ecosystem to tell the justices like, Here’s what to say when you say it, you’re going to be validated. You’re going to be invited to the parties like you’re going to be applauded, get given standing oaths. And that’s I think part of what it’s doing.
Melissa Murray It’s a bunch of mini Federalist Society galas every day.
Leah Litman And to me, it underscores that, you know, one of the biggest problems with the court are, again, not the people criticizing the court or the people saying, like, the court is behaving badly. It’s these problems are coming from people who support the results that the court is reaching. And because they support the results, they are looking the other way and enabling the bad behavior of the court. Or maybe it’s the people who, out of some misguided sense of professional obligation, just continue to like paddle along in this ecosystem. Like everything is fine. And the justices who are so convinced of their righteousness on one hand, and the evil hackery of people who question them on the other, that they, you know, refuse to reflect critically. And, you know, take a look at what they are doing. And, you know, I think this is going to be their undoing, like they are just not going to engage with reality. And I think we’ve already kind of said this. But again, even if there was no leak, even if there was no formal quid pro quo between the influence campaign and Justice Alito, even if the influence campaign is not that, but for cause of any particular result in a decision, everything else the article describes is still appalling. It is still a scandal, and, you know, it deserves meaningful attention.
Leah Litman [AD]
Kate Shaw To connect this story up to things we’ve talked about on the podcast as well and guests that we have had on the podcast. So the Influence campaign and the Access campaign that these conservative lobbyists and donors have secured, obviously calls to mind our frequent guest, Senator Sheldon White Board, White House and also journalist Jane Mayer, both of whom have been talking and writing for years about what is happening with the courts and have often been dismissed as conspiracy theorists. But this, I think, very much illustrates that they are anything but. And, you know, let’s think maybe about the courts corruption cases, something else we have talked about on the podcast in light of these revelations. So cases like McDonnell, which held that it’s not illegal literally to trade money for meetings and access or the Bridgegate case. KELLY Basically holding that federal statutes don’t prohibit various forms of self-dealing and corruption by politicians because, you know, that’s just politics. I mean, those cases kind of hit differently when you think about them in light in light of these revelations that the justices are engaged in really similar behaviors, at least some of them. And look, again, everything in the story would still be bad even if they didn’t like influence or buy results in any particular cases. And that, you know, is not just because of appearances.
Leah Litman Yeah. I mean, I think, you know, you mentioned the court’s corruption cases, but as I kind of suggested earlier, I feel like all of the courts cases have to be read in light of this story as decisions made by people who are susceptible to and targets of that influence campaign, you know, by people who have no qualms about doing whatever it takes to reach their desired result. And, you know, we were kind of talking about this before recording, but this story is again, it was still very striking to me, even though it felt like we have seen drips and dribbles of this story in pieces over the last few years. And that’s in part because a lot of this has just been happening right in front of our eyes. You know, you think about the justices speaking at the Heritage Foundation, the justices speaking at Federal Society conventions, where the decisions overruling Roe gets standing ovations and Justice Barrett makes jokes about the protesters outside of her homes. You know, Justice Alito attending Secretary Pompeo’s Madison dinners, Justices Alito and Kavanaugh attending a meeting of which there are photographs with anti-gay activist Brian Brown, Clarence Thomas emails confirming lunches with Ron DeSantis, who’s in his wife’s like political action circle and prayer circle, all of Ginny’s connections and selling her access and influence to conservative legal groups that have cases before the Supreme Court.
Melissa Murray But we wait, Leah, remember, there was that time where Justice Sotomayor had lunch with Chuck Schumer.
Leah Litman Except she didn’t. And still people were freaking out because they saw Senator Schumer having lunch with his wife and then they.
Melissa Murray Who happens to be brunette like this is what happens when you assume all women have no reproductive rights. You can’t distinguish.
Leah Litman And then the right wing ecosystem is freaking out about the possibility that Justice Sotomayor was having lunch with Senator Schumer. And.
Melissa Murray And she wasn’t.
Leah Litman Right.
Melissa Murray She was just another brunette having lunch with her husband.
Leah Litman And again, all of this is happening. And yet the court’s defenders have been screaming like, don’t be hysterical, libs, this is all just fine. It’s not partizan, it’s not ideological. And, you know, all of this is happening at a time when faith in our institutions is crumbling and it’s crumbling for good reason. Like the lack of faith is not the problem. It’s the thing these institutions are doing. And this just really brings it home. Like a politicized, unaccountable, powerful institution is a recipe for disaster.
Melissa Murray All right. So just for fun, as we kind of get to the end of all of this, let’s pull out the receipts and hear a little bit of what Justice Alito has said publicly about his colleagues of late and the ethical obligations of members of the court. So I’ll start. Quote, to say the court is exhibiting lack of integrity that goes to character. End quote. Sam Alito.
Leah Litman That’s just an ultimate example of. Right.
Melissa Murray Gaslight trolling.
Leah Litman Exactly, like the people saying the court is breaching basic principles of ethics are the problem, not the fact that the court is breaching like basic principles of ethics.
Melissa Murray Well, here’s another good one. Samuel Alito, again, the author of The Decision this year, overruling Roe versus Wade, telling The Wall Street Journal that implying just implying that the court has crossed a line and is illegitimate itself, quote unquote, crosses an important line. Are there any lines crossed here? I mean, buying the building.
Leah Litman That’s what Justice Alito said about Justice Kagan, delivering public speeches at Northwestern Law School and whatnot at all. The meanwhile, he’s having these behind closed doors, lunches with ideological fellow travelers who he’s setting up with. Again, other ideological fellow travelers. It’s just it’s all a bit much. Also, just backing up, can he not find any dinner companions who aren’t insane activists? Ideologues like are those the only possible dinner companions that he has? And if they are, does that suggest there’s a problem? I’m here. It’s just. Eww. Maybe before we get into asking what we think should happen to, you know, the court justices in light of these revelations, we could take a page from history when we are thinking about what might happen to our little messy bitch from New Jersey. That’s Sam Alito, of course. And in particular, it’s worth looking back to the story of Justice Abe Fortas. So Fortas had accepted a $20,000 retainer from the Family Foundation of Wall Street financier Lewis Wolfson, a friend and a former client, in 1966. And at the time, that $20,000 probably amounts to close to $150,000 today. And the retainer was for in return for unspecified advice, you know, the foundation agreed to pay for this that amount each year. But Fortas returned the money the same year and received no additional further payments, perhaps because of concerns about an appearance of impropriety. But leader Wolfson surreptitiously taped a private telephone call with Fortas and disclosed a transcript of the call to The Washington Post. Portions of that call suggested Fortas might have spoken with President Johnson about a pardon for Wolfson, but there was no evidence that it was a quid pro quo exchange. Rather than, say, a voluntary intervention for a friend, colleague, acquaintance, maybe someone with whom Fortas had a casual and purely social relationship anyways. For that, Fortas was forced off the court for a relationship with wealthy, politically connected donors who were seeking influence. And here are the Times story reveals at a minimum. I mean, you have a justice admitting to dining privately with activists while the court is deciding a case about this activist core issue. When the activists have used money to get access to the justices and use their common ideological commitments and personal relationships to do the same.
Kate Shaw Okay. So as we wrap up, do we want to venture any predictions about what is going to happen or what should happen?
Melissa Murray We know what’s going to happen, but let’s talk about what should happen.
Leah Litman He should resign.
Melissa Murray He should.
Leah Litman Is number one. Second, if he doesn’t, the House should hold hearings during the lame duck session. And Mondaire Jones should run those hearings. That’s number two. Number three, Sam Alito should be forced to wear the hot dog suit to every oral argument for as long as he remains on the court. And that hot dog suit will have a sign on it that says, we’re all trying to find the guy who did this. That’s option three.
Melissa Murray I agree with everything that Leah said, including the hot dog suit. And you have to wonder, what is the chief justice going to do in all of this? I mean, because, again, he actually stands to gain if there are real repercussions, like, one, it looks like he’s actually taking this seriously, that he is an institutionalist, that he cares about the court in the very, very off chance that Justice Alito resigns because he understands the gravity of the situation. Or alternatively, there is some movement maybe to impeach him. The chief justice stands to benefit from that. He’s back in the hot seat as the swing justice, as opposed to this, you know, embattled and beleaguered conservative who can’t keep his coalition together. He should think about it.
Kate Shaw No, no, I just I like the idea that actually, like ousting Sam Alito is something that that Chief Justice Roberts should get behind. I have a hard time believing that he’s actually going to get on board with that. But the case you just made is really kind of unanswerable. So really, that’s what Chief Justice Roberts, if he cares about the institution, should do.
Melissa Murray Don’t talk about it, be about it.
Kate Shaw And he we should say he comes off in the article as somebody who is like, oh, no, don’t bring that bullshit to me. That’s not this is not how this works. So, look, obviously, we’re very critical of Chief Justice Roberts in many ways on this point.
Melissa Murray Only only he only does that to a point. He’s polite but standoffish when the influence peddlers approach him. But then when they send him a letter.
Leah Litman When its so obvious that people coming at him who have paid hundreds of thousands of dollars to get access and are trying to convince him to do things in cases. He’s like, Hmm, maybe this would be a little bit too obvious.
Melissa Murray He does sit on the Schenck letter for a little bit.
Kate Shaw That’s right. But but we don’t actually know. He hasn’t hasn’t done anything.
Melissa Murray So does The New York Times.
Kate Shaw Publicly.
Leah Litman He’s been too busy allowing states to execute people through fundamentally flawed execution protocols and to allow judges to override jury determinations that someone shouldn’t be sentenced to death. That takes time to write all of those on reasoned opinions, clearing the way for executions.
Kate Shaw No, I appreciate you linking those things. I think it’s really important. I do. I just think this is not the last we’re going to hear or say on the topic. So, listeners, stay tuned. We will stay on the story. And I suspect the reporters at the New York Times will as well.
Melissa Murray This ends our special coverage of Leak Gate Part Deux but or part duh. This was a very special episode of Strict Scrutiny covering this bombshell news from Jodi Kantor and Joe Becker about the Supreme Court. But I think this is still a developing story and of. Course, we will always keep you updated as it develops.
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Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Kate Shaw, and me, Melissa Murray. Produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin and Music by Eddie Cooper, with production support from Michael Martinez, Sandy Girard and Ari Schwartz and digital support from Amelia Montooth. Thanks for listening.