The Supreme Court Stonewalls In Defense Of Samuel Alito

The court acted as defense counsel in response to threats of congressional inquiries into its ethical lapses.
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A lawyer for the Supreme Court dismissed questions about ethics issues at the court in a terse reply to a letter from two top congressional Democrats on Monday.

Supreme Court legal counsel Ethan Torrey replied to the inquiry from Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.), each in charge of oversight of the courts in their respective chambers.

The two congressional investigators had pressed Chief Justice John Roberts to answer questions about how the court handles ethical breaches after news reports revealed a pressure campaign by the Christian conservative group Faith & Action, at the time run by Rev. Rob Schenck, that allegedly resulted in Justice Samuel Alito revealing the outcome of his 2014 decision in Burwell v. Hobby Lobby prior to its release.

Torrey did not answer any of Whitehouse and Johnson’s questions regarding ongoing or potential ethics inquiries into the court’s leaked draft opinion overturning Roe v. Wade, or into Alito’s alleged leak of the Hobby Lobby outcome. Nor did he say which justices received gifts as part of the religious right pressure campaign.

Torrey instead takes the tone of a defense counsel stonewalling an investigative body.

“There is nothing to suggest that Justice Alito’s actions violated ethical standards,” he wrote.

Torrey’s letter simply restates Alito’s denial of the alleged leak, saying that The New York Times report that the conservative justice leaked the Hobby Lobby outcome to Donald and Gail Wright, two supporters of Faith & Action remained “uncorroborated.” He goes on to say that Alito did not violate ethics rules in accepting meals and lodging from the Wrights because the couple “never had a financial interest in a matter before the Court.”

“In addition, the term ‘gift’ is defined to exclude social hospitality based on personal relationships as well as modest items, such as food and refreshments, offered as a matter of social hospitality,” Torrey wrote.

Supreme Court Justice Samuel Alito denies leaking the outcome of his decision in the 2014 Hobby Lobby v. Burwell case.
Supreme Court Justice Samuel Alito denies leaking the outcome of his decision in the 2014 Hobby Lobby v. Burwell case.
Alex Wong via Getty Images

“Through legal counsel, the Supreme Court reiterated Justice Alito’s denials but did not substantively answer any of our questions,” Whitehouse and Johnson responded in a joint statement issued on Tuesday. “The Court’s letter is an embodiment of the problems at the Court around ethics issues.”

“The assertions of fact by the Court’s lawyer emerge from darkness, and overlook important facts like all the contemporaneous evidence that Mr. Schenck in fact knew both the outcome and author in advance and acted at that time on that knowledge,” they added.

In a Nov. 20 letter, Whitehouse and Johnson demanded that Roberts say whether the court was investigating any aspect of Faith & Action’s pressure campaign, including Schenck’s allegation that Alito had leaked the Hobby Lobby outcome. Schenck had written a letter to Roberts alleging Alito’s prior leak as the chief justice was investigating the leak of the Dobbs v. Jackson Women’s Health Organization draft opinion to Politico.

The two congressmen also wanted to know if the court had considered taking a tougher approach to internal ethics in light of Schenck’s allegation and asked whether anyone is in charge of preventing conflicts of interest related to donations to the Supreme Court Historical Society. Schenck claims that he directed his supporters to gain access to the justices by donating to the society and attending its annual dinners.

Whitehouse and Johnson also requested that Roberts “designate an individual knowledgeable about” internal court ethics issues “to provide testimony to us about ... issues related to ethics or reporting questions raised about justices’ conduct.”

“If the Court ... is not willing to undertake fact-finding inquiries into possible ethics violations that leaves Congress as the only forum,” Whitehouse and Johnson asserted in their November letter.

And in their joint statement issued on Tuesday, the two lawmakers restated their belief that the court lacks credibility to police itself absent a legally binding ethics code and complaint process.

“Unlike all other federal courts, there is no formal process for complaints; it took a Senator’s and a Congressman’s repeated letters to galvanize a response,” they wrote. “Unlike all other federal courts, there is no formal process for fact-finding inquiry.”

“That absence of independence violates the ancient maxim, nemo judex in sua causa: no one should judge their own cause,” they added. “These multiple failures of orderly process are peculiar, coming from the highest Court in the land. Procedure is the bone structure of justice.”

While Johnson will not remain chairman of the House subcommittee overseeing the courts after Republicans won control of the chamber, Whitehouse will remain in charge of the same Senate subcommittee in the next Congress.

This story has been updated with a Tuesday statement from Whitehouse and Johnson.

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