Samuel Alito, Leaker in Chief

Samuel Alito leaked the 2014 Hobby Lobby ruling to right-wing donors - a deep dive into the cozy relationship between extremist justices and conservative sponsors & think tanks.

I didn’t think I would start this newsletter by imagining what various Republican politicians and conservative pundits might be doing today. I see Ed Whelan, head of the right-wing Ethics and Public Policy Institute and Federalist Society hack cursing at his laptop, various National Review editors scrambling as to who can come up with a new anti-trans piece to distract from this latest scandal the fastest, Ted Cruz staring blankly into space, and Lindsay Graham throwing staplers.

I won’t deprive you of this gem in the genre “imagining the right-wing reaction to this morning’s news” by Jay Willis:

“[tears streaming down Ed Whelan’s face as he realizes he’s been calling for the prosecution, imprisonment, and torture of his beloved Samuel Alito]”

But let’s backtrack for a second. What has happened?

Well, remember how conservatives were yelling about how the leaker of the Dobbs-opinion had to be punished, sent to prison, shunned, shamed and persecuted? How Donald Trump suggested both the leaker and the journalist should be threatened with prison and rape in order to get them to confess, how journalists should be imprisoned so they give up their sources? 

Today, the New York Times reported that Reverend Robert L. Schenck disclosed that this was not the first time a SCOTUS opinion was leaked. In 2014, he said, he knew how the court would rule in the Hobby Lobby case - which was a major win for the Religious Right - before the opinion was made public. He addressed this in a letter to Chief Justice John Roberts in July 2022, writing:

“Back inJune 2014, when so many awaited the Court's opinion in Burwell Hobby Lobby, was informed by a donor tothe Capitol Hill-based non-profit organization led that she and her husband would be dining at the home of Justice and Mrs. Alito. She suggested that in their table conversation, she might be able to learnthe status of the case, something she knew had an interest in knowing. I received a follow -up message from her notifying me she had indeed obtained the information during that visit. We spoke on the phone, and she detailed the revelation. As recall, we talked about the Green family, owners of Hobby Lobby, and how they, too, would be interested in this information.”

According to the NYT, Schneck received an email by Gayle Wright, the Alitos’ dinner guest, stating: “Rob, if you want some interesting news please call. No emails.” In the phone call, she told him that the court would rule in favour of Hobby Lobby, and “that Justice Alito had written the majority opinion.” 

Schenck is not just anyone: He is one of the central figures in the anti-abortion movement in the US, and the Wrights were amongst his top donors. These allegations once again shine a devastating light on the cozy relationships of right-wing justices with conservative donors, conflicts of interest be damned - and how desperately this court needs watertight ethics guidelines (they don’t exist as of now, bizarrely). 

In July 2022, Rolling Stone reported that Peggy Nienaber, vice president of the evangelical Faith & Liberty group, had been bragging about praying with sitting justices in the highest court of the land: “We’re the only people who do that”, she said. This is particularly outrageous because, according to Rolling Stone:

“Nienaber’s ministry’s umbrella organization, Liberty Counsel, frequently brings lawsuits before the Supreme Court. In fact, the conservative majority in Dobbs v. Jackson Women’s Health, which ended nearly 50 years of federal abortion rights, cited an amicus brief authored by Liberty Counsel in its ruling. In other words: Sitting Supreme Court justices have prayed together with evangelical leaders whose bosses were bringing cases and arguments before the high court”,

In the photo above it, Nienaber is pictured next to Schenck, their heads bowed in prayer before the Supreme Court. Schenck had previously led “Faith and Action”, the predecessor of Nienaber’s group.

Schenck’s allegation that Alito leaked the Hobby Lobby decision to the Religious Right is especially salacious because Alito had lots to say about the Dobbs-leaker this summer: He claimed that the leak had made justices “targets for assassination,” Alito said during an event by the right-wing Heritage Foundation.

“The leak also made those of us who were thought to be in the majority in support of overruling Roe and Casey targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us. And we know that,” Alito said. „It was a grave betrayal of trust by somebody, and it was a shock because nothing like that had happened in the past, so it certainly changed the atmosphere at the court for the remainder of last term.”

Alito wasn’t the only conservative condemning the leak - Whelan, who had clerked for Alito, had called for SCOTUS to expedite the process of publishing the final opinion and made the connection to death threats as well. Whelan is very familiar with the inner workings of the court: the former Bush White House aide was tasked with the conformations of Roberts and Alito, claiming: 

“When I ran Roberts and Alito confirmations, Ed Whelan was the singularly most important/effective outside advisor in confirmation effort. knew every detail when it came to our strategy. everything he did was closely coordinated w/the WH effort”

There are several things we can deduce from this news: 

1. Alito leaked the Hobby Lobby decision, a major win for the Religious Right, which he also wrote

2. It seems likely that he, or someone from his orbit, leaked the Dobbs decision to
   a) leave enough space between the upcoming midterms and the immediate backlash against the ruling and
   b) signal to possibly wavering members of the reactionary right-wing of the court, that they better hold the line - or deal with the wrath of the base, should the final opinion read differently than the draft

3. It also makes Roberts look really bad. He made a big deal of the Dobbs-leak, started an investigation, and got this letter in July - buried it, and did nothing

4. There is a massive effort of right-wing organizations, donors and think tanks to sway and influence the reactionary extremist majority of the Supreme Court - and it’s proven to be quite successful

Multiple political commentators had already expressed doubt regarding the conservative narrative that a liberal leaked the opinion, explaining that it made way more sense to have come from the conservative camp. Amongst these voices were Elie Mystal and Imani Ghandi, to name only a few - and they were correct. And yet, when we offered this thesis after the Dobbs-leak, we were shouted down.
Alito, of course, denies that he leaked the 2014 decision, but admits to the dinner with the couple. Whelan, meanwhile, is already drafting apologetics that are even more pathetic than you might have imagined, tweeting:

 “Assume for sake of argument that Schenck's account is accurate. Private disclosure, inadvertent or otherwise, would be very bad. But does anyone think that these don't happen a lot? E.g., person in contact with justice or clerk draws inferences from tone/gestures.

There is a world of difference between private leak that Schenck alleges and public disclosure of Dobbs draft. Zero reason to see connection between them. Idea that Alito might have leaked Dobbs draft is bizarre in countless ways.”

So, to sum it up: Leaking to anti-abortion donors who have a literal stake in the ruling is way less bad than leaking to the press - to noted left-wing rag “Politico”, nonetheless (you might detect a whiff of sarcasm here). Also, the way a justice smiles at a clerk could also be classified as a leak, if we go so far as to investigate private relationships of justices (to right-wing donors with a vested interest in the outcome, who are wining and dining them, but anyway). 

I’m curious to see what other excuses Whelan and the right-wing media machine will come up with. If his incendiary thread that was supposed to exonerate Kavanaugh from any allegations of sexual assault, was any imclination, we can expect something along the lines of “maybe the donor couple had dinner with someone who looked exactly like Sam Alito but wasn’t actually Sam Alito.” And while wer’re on the topic of Kavanaugh: In 2018, The Daily Beast reported that Whelan, a close friend of Kavanaugh, knew the identity of Christine Blasey-Ford, one of Kavanaugh’s accusers long before it was made public:

“…Ford noticed Whelan looking at her LinkedIn and emailed an associate about it. That email was sent “about 90 minutes after The Post shared her name with a White House spokesman and hours before her identity was revealed.” A White House spokesman told the newspaper that neither Kavanaugh nor anyone at the White House gave Ford's name to Whelan.”

But back to the big picture: The Court has proven itself over and over to be illegitimate - and the investigation and removal of Alito from it would be the only correct course of action. Don’t hold your breath, though.