This piece has been updated to include a statement from Curt Levey, a constitutional law attorney and the president of the Committee for Justice.
The Left has truly ratcheted up their attacks on the U.S. Supreme Court and its conservative justices, especially when it comes to Justice Samuel Alito. As Matt covered last week, Democrats are demanding an investigation into the Court over an alleged leak of the 2014 Burwell v. Hobby Lobby case. This is after a leak of the Dobbs v. Jackson case from early May, which was officially handed down in late June, for which Justice Alito wrote the majority opinion. As POLITICO's Josh Gerstein reported on Monday night, Ethan V. Torrey, legal counsel for the Supreme Court, sent a letter pushing back against any claims of impropriety, calling the charges of a leak "uncorroborated." Gerstein, along with Alexander Ward, is one of the POLITICO reporters who first leaked the draft.
Gerstein describes the letter as "an unusually forceful and detailed rebuttal," but the claims made against Alito are indeed serious. Democrats had also "threatened a congressional probe if the court did not launch its own inquiry into the claims," as Gerstein phrased it in his report.
Torrey is clear in his letter when it comes to denying the claims made by a former pro-lifer turned liberal, Rev. Rob Schenck, that an Ohio woman, Gail Wright, who along with her husband, dined with Justice Alito and his wife and claimed to have received a heads-up on the outcome of the Hobby Lobby decision. Wright, however, as mentioned in Torrey's letter and in POLITICO reports, has denied the claim, calling it "patently not true."
"The Justice never detected any effort on the part of the Wrights to obtain confidential information or to influence anything he did in either an official or private capacity. Mr. Schenck’ allegation that Justice Alito or Mrs. Alito gave the Wrights advance word about the outcome in Hobby Lobby or the authorship of the Court's opinion is also uncorroborated," Torrey's letter mentions.
As his letter also highlights, "Politico reports that despite several months of effort, the publication was 'unable to locate anyone who heard about the decision directly from either [Justice] Alito or his wife before its release at the end of June 2014.' The New York Times stated that 'the evidence for Mr. Schenck’s account of the breach has gaps.'"
The letter goes on to say that "[t]here is nothing to suggest that Justice Alito's actions violated ethics standards."
Torrey's letter from Monday was addressed to Sen. Sheldon Whitehouse (D-RI) and Rep. Hank Johnson (D-GA), with the Democratic members in question being the ones who sent a letter to the Court, as Gerstein also reported earlier this month.
From Gerstein's November 20 report:
Two senior Democrats in Congress are demanding that Chief Justice John Roberts detail what, if anything, the Supreme Court has done to respond to recent allegations of a leak of the outcome of a major case the high court considered several years ago.
Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.) are also interested in examining claims about a concerted effort by religious conservatives to woo the justices through meals and social engagements. They wrote to Roberts on Sunday, making clear that if the court won’t investigate the alleged ethical breaches, lawmakers are likely to launch their own probe.
The pair of lawmakers also criticized the high court’s response to a letter they sent Roberts in September, seeking information about the court’s reaction to reports in POLITICO and Rolling Stone about a yearslong campaign to encourage favorable decisions from the justices by bolstering their religiosity.
A Supreme Court ethics attorney replied on Roberts’ behalf earlier this month, recounting some of the court’s policies and practices in the area, but offering no specifics about the lobbying drive.
“A response pointing out the existence of rules is not responsive to questions about whether those rules were broken,” Whitehouse and Johnson wrote in their new letter Sunday, which was obtained exclusively by POLITICO. “It seems that the underlying issue is the absence of a formal facility for complaint or investigation into possible ethics or reporting violations. …. If the Court, as your letter suggests, is not willing to undertake fact-finding inquiries into possible ethics violations that leaves Congress as the only forum.”
Gerstein's report and the letter from Whitehouse and Johnson mention a report from The New York Times, the same report where, as Torrey highlighted in his letter, mentions "the evidence for Mr. Schenck’s account of the breach has gaps."
It's also worth highlighting that Whitehouse is a frequent critic of the Court to begin with, often ranting about dark money claims and Leonard Leo of the Federalist Society.
Whitehouse has gone specifically after Alito as well, having tweeted from his official account on September 29 mocking Alito's concerns about how criticism of the Court was going too far and affecting legitimacy.
— Sheldon Whitehouse (@SenWhitehouse) September 29, 2022
Yes, an important line that the special interests who captured the Court are desperate to defend, lest their $580+ million investment in the capture be wasted.
— Sheldon Whitehouse (@SenWhitehouse) September 29, 2022
On Tuesday morning, Whitehouse, again from his official account, retweeted Rep. Hank Johnson's official account sharing an article from USA Today about Torrey's letter.
#SCOTUS reiterated Justice Alito's denials but did not substantively answer any of my & @SenWhitehouse's questions. The court's letter in response is an embodiment of the problems at the court around ethics issues. https://t.co/E3q2DTbtVF
— Rep. Hank Johnson (@RepHankJohnson) November 29, 2022
Later that same day, he tweeted out a whole thread where he continued to rant against the Court.
The Court continues to ignore most of the allegations; the Court still hasn’t answered my and @RepHankJohnson’s questions or even acknowledged the extent of this 20-year, $30 million judicial lobbying operation.
— Sheldon Whitehouse (@SenWhitehouse) November 29, 2022
It doesn’t stop there.
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.
— Sheldon Whitehouse (@SenWhitehouse) November 29, 2022
These multiple failures of orderly process are peculiar, coming from the highest Court in the land.
— Sheldon Whitehouse (@SenWhitehouse) November 29, 2022
Procedure is the bone structure of justice.
Curt Levey, a constitutional law attorney and the president of the Committee for Justice, addressed Whitehouse and Johnson's actions in a statement for Townhall.
"The recent letters that Democrats have sent to the Supreme Court, threatening Congressional investigations as part of a continued attempt to intimidate the Court, are a threat to the independence of the judiciary and the Constitution’s separation of powers. At the same time, the letters lack credibility given how little interest Democrats have shown in trying to get to the bottom of the Dobbs leak, which was far more serious than the alleged but uncorroborated Hobby Lobby leak the Democrats are complaining about. Unlike the supposed leak of the result of the Hobby Lobby case, the Dobbs leak involved the full draft of the majority opinion and had serious repercussions," Levey mentioned.
The charges against Alito and the Court would be laughable if the leftist attacks weren't such a serious matter. Illegal protests in May forced Alito to flee his home and for him to tune into events remotely. Someone even sought to assassinate fellow conservative Justice Brett Kavanaugh. Let's also not forget that there was an actual leak when it comes to the Dobbs decision, as Levey mentioned in the statement above. That leak precipitated the illegal protests and assassination attempt.
"Following the Dobbs leak, the Left spent this spring trying to intimidate the conservative Supreme Court justices by protesting in front of their homes. The Democrats are unconcerned about that intimidation but are worried that conservatives are talking to the justices about religion? The contrast would be funny if it didn’t reveal the Democrats’ thinly veiled hostility to people of faith trying to influence political and legal debate," Levey added.
Not only did Democrats not take issue with the leak, they were quite transparent in how the issue, to them, was not so much the leak, but the outcome of the draft, which was the same in the ultimate decision.
During the May 4 White House press briefing, then Press Secretary Jen Psaki focused on the contents of the draft, saying "But our focus is on not losing sight from what the content is in the draft and what is at risk here. And while we have heard a number raised concerns about the leak, our focus is on highlighting what the content in there would risk--put at risk for women across the country."
We still don't know who leaked the Dobbs decision, almost six months later. Perhaps lawmakers should be more focused on that.
It’s been 210 days since the draft Dobbs opinion leaked, and the Supreme Court leaker has still not been identified.
— JCN (@judicialnetwork) November 28, 2022
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