Democrats Demand Answers on Alleged 2014 Supreme Court Leak

Supreme Court Chief Justice John Roberts at the U.S. Capitol in Washington on April 28, 2021. Melina Mara/Pool/Getty Images

Democrat lawmakers are demanding answers from Supreme Court Chief Justice John Roberts about the alleged leak of a decision in 2014.

The heads of the Senate and House of Representative committees on the courts, in a letter dated Nov. 20 and released Monday, asked Roberts for answers after a clergyman came forward and said he received secret information about the looming Burwell v. Hobby Lobby decision years ago.

Rev. Rob L. Schenck, a former pro-life leader, says that he learned of the outcome in the case three weeks before it was made public from an activist, Gayle Wright, who had dined with her husband, Justice Samuel Alito, and Alito’s wife at the Alito home. Schenck sent a letter to Roberts in July giving a summary of the allegation and offering to cooperate fully with Supreme Court officials.

Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson Jr. (D-Ga.) asked Roberts whether the court has investigated Schenck’s claims and, if it has, what it has learned.

Whitehouse chairs the Senate Judiciary Subcommittee on federal courts and Johnson heads the House Judiciary subcommittee on courts. Both support efforts to expand the nation’s top court, which have not caught on with the full Democrat caucus or President Joe Biden.

The lawmakers said that if Roberts, a George W. Bush appointee, would not “undertake fact-finding inquiries into possible ethics violations,” then “that leaves Congress as the only forum” for investigating potential unethical conduct.

The court has not responded to requests for comment.

Johnson said the revelation of the apparent leak in 2014 indicates that Alito may have been the person who revealed the decision in Dobbs v. Jackson Women’s Health Organization. A draft ruling in that case was obtained and published by Politico in early May. The final ruling, published about seven weeks later, struck down Roe v. Wade.

After the Dobbs leak, Roberts issued a statement calling the apparent leak “a betrayal” and ordered the court’s marshal to investigate. Neither he nor the court have identified the person or people responsible for the draft ruling release.

Whitehouse said Alito’s denial that the Hobby Lobby ruling was leaked was not believable in light of Alito’s reportedly saying years ago during a meeting with Sen. Ted Kennedy (D-Mass.) that he believed in precedents, and that the right to privacy in Roe was “settled.”

Wright has also denied receiving or providing secret information.

Schenck did not return an inquiry and Wright could not be reached.

The lawmakers did not provide a deadline to Roberts, but suggested he designate an individual knowledgeable about the issues to testify to them.

Sen. Sheldon Whitehouse (D-R.I.) speaks during a congressional hearing in Washington on Feb. 25, 2021. Susan Walsh/Pool/Getty Images

Repeated Criticism

Whitehouse and Johnson are among Democrats who have repeatedly criticized justices in recent years. They don’t like many of the rulings the court has handed down, assert that justices failed to recuse in some cases despite clear conflicts of interest, and say that the court’s lack of ethics rules have undermined trust in it. Among the proposed fixes: a law that would require the court to create a code of conduct, and to establish rules around disclosing gifts.

The pair penned a letter in September to Roberts about the campaign Schenck said he led to influence justices’ decisions in key cases, including the organization of dinners that featured one or more of the justices. Wright was among those involved, according to Schenck.

The lawmakers said that the alleged campaign was alarming and “further confirms the need for the judiciary to enact stronger ethics requirements as soon as possible.”

While justices have the right to maintain personal relationships and have a certain level of privacy, Americans are entitled to impartial judges who should be transparent about financial ties, they added.

In a response dated Nov. 7 that was made public by Whitehouse after the new allegations, Ethan Torrey, legal counsel for the Supreme Court, said that he had already addressed the questions in a July 12, 2021, missive to Whitehouse and Sen. Lindsey Graham (R-S.C.). In that letter, Torrey said that justices utilize the code of conduct in place for lower-level judges when evaluating possible ethics issues.

The code says judges should avoid the appearance of impropriety and remain impartial.

Torrey also said justices follow the financial disclosure rules applicable to lower-level judges.

The response “notes the existence of the wall-decoration code, but is not responsive to my letter and shows no sign of inquiry or interest in what went on,” Whitehouse said.

Sen. Dick Durbin (D-Ill.) speaks to reporters in Washington on Sept. 28, 2022. Anna Moneymaker/Getty Images

Other Democrats

A number of other Democrats also said the new leak allegation was concerning, including the number 2 Democrat in the upper chamber.

“The Senate Judiciary Committee is reviewing these serious allegations, which highlight once again the inexcusable ‘Supreme Court loophole’ in federal judicial ethics rules,” Sen. Dick Durbin (D-Ill.), the Senate majority whip and chair of the committee, said in a statement.

Durbin called on Congress to pass a proposal called the Supreme Court Ethics Act that would require the court to adopt a code of ethics for justices.

“No code of ethics. No transparency. No term limits. The Supreme Court cannot continue to operate with nearly limitless power and zero accountability, something the Framers did not even consider,” added Steve Cohen (D-Tenn.).

No Republican members of Congress have appeared to react to the new leak allegations. Republicans roundly criticized the release of the draft Dobbs decision while virtually no Democrats spoke out against the move.