I suspect that every member of the National Press Club may at one time have met the Reverend Rob Schenck. This indefatigable evangelical pastor has used the club many times—to thank the kingdom of Morocco for its cooperation with Christian missionaries in 2010, for example, or to decry the creation of a concealed-carry pistol holder disguised as a Bible in 2018.
My rendezvous with Schenck occurred in 2018 when I emerged bleary-eyed from a law-related press conference down the hall at the club. A young intern rather firmly steered me into an event to celebrate the publication of Schenck’s book, Costly Grace: An Evangelical Minister’s Rediscovery of Faith, Hope, and Love—a memoir that details his disillusionment after years laboring in the vineyards of the religious right. It was a score: I got a copy of the book (it’s pretty good) and a free lunch with a clergyman of great charm, intelligence, energy, and wit. Since then, I have thought of Schenck as a friend—even though, I suspect, he wouldn’t know me from Adam’s off ox if we met on the street.
Communication skills, charm, and an ability to create such bonds are useful to clerics and aspiring intelligence operatives. Schenck himself, we have now learned, was a spymaster who became something like John le Carré’s George Smiley, but for the Celestial Intelligence Agency rather than MI6.
Last week, in interviews with The New York Times (with documents to support his account), Schenck revealed what he had given the covert name “Operation Higher Court,” a brilliantly successful exploit aimed at penetrating the U.S. Supreme Court. Under Schenck’s tutelage, his agents (actual American millionaires of pious inclination whom he recruited for this purpose) gained special seats at oral arguments, prayer sessions and dinners with the justices, and opportunities to vacation with them.
Schenck has revealed that as long ago as 2014, three conservative justices—Samuel Alito, Clarence Thomas, and the late Antonin Scalia—were in such close and constant contact with one of his cat’s-paws, a wealthy donor named Gayle Wright, that she seemed to complain in an email to Schenck about the feverish pace of the operation: “Lunch with CT on Monday, Sam [Alito] on Wednesday, dinner at court on Monday, Dinner with Maureen [Scalia] on Wednesday.”
Vladimir Putin must wish that Maria Butina had succeeded so well!
Higher Court’s proceeds included unparalleled access to the justices and, according to Schenck, literally top-secret information: the result in Burwell v. Hobby Lobby Stores. This case held that for-profit corporations and businesses have the “religious” right to exempt themselves from providing contraceptive services to their female employees. Schenck told the Times he received advance word of the result on June 4, 2014, giving him more than three weeks to prepare a public relations campaign to support the opinion when it appeared in public on June 30. Schenck’s documents appear to show that Wright, one of a pair of real estate millionaires whom he had recruited to befriend the justices, told him she had this inside information immediately after she and her husband dined at Alito’s home.
In response to the revelation, Alito issued a lawyer’s denial:
The allegation that the Wrights were told 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. My wife and I became acquainted with the Wrights some years ago because of their strong support for the Supreme Court Historical Society, and since then, we have had a casual and purely social relationship. I never detected any effort on the part of the Wrights to obtain confidential information or to influence anything that I did in either an official or private capacity, and I would have strongly objected if they had done so.
The revelation of this operation comes at a bad time for America’s beleaguered high court, which has seen its prestige tumble in public opinion surveys—and among lawyers and members of Congress—since the May leak of Alito’s preliminary opinion in Dobbs v. Jackson Women’s Health Organization, in which the conservative justice swept aside a half century of constitutional protections for the right to choose abortion. That leak sparked a savage backlash—one so predictable that the Court had closed off its plaza with an unscalable fence within hours of the leak. (Alito himself has denounced the leak for putting his own life and that of the Court’s other conservative justices in danger.)
According to the Times account, Schenck has repented of his decades of anti-choice advocacy. He notified Chief Justice John Roberts last June of the leak and suggested that, since Roberts had ordered an investigation of the Dobbs leak, he might also want to know about the Hobby Lobby leak. So far, Roberts has not responded publicly. That is in keeping with the fact that the loudly proclaimed investigation by the Court’s marshal of the Dobbs leak has produced to date … well … the word that comes to mind is bubkes.
A good intelligence operative can find the weak spot in an adversary’s security. Thus, consider the brilliance of case officer Schenck’s opening move. He found the Court’s crucial vulnerability to be, of all things, the august Supreme Court Historical Society.
A less likely scene of intrigue has rarely presented itself. Worthy events sponsored by the society sometimes leave their audiences (or at least me) at the edge of a coma. But like any nonprofit group anywhere, the Supreme Court Historical Society is eager to augment its treasury with disinterested gifts from grateful patriots. Large gifts gained Schenck’s agents invitations to schmooze the justices at the society’s events, which, Schenck revealed, eventually led to an invitation for Steve Green, the president of Hobby Lobby, to attend the Court’s legendary holiday party in 2011. Green would later be the lead plaintiff in the Hobby Lobby case, in which Alito wrote with great sympathy about the Green family’s religious sincerity.
What can we learn from this tawdry episode? We learn that Supreme Court justices, like other humans in positions of power, are subject to influence and temptation. We also learn that shame alone is an inadequate sanction against the arrogant and powerful. Like the late Justice Scalia, Alito and Thomas have answered criticism with lordly silence and continued refusal to recuse (Thomas) or simple sneers (Alito). Scalia, who famously went hunting with Vice President Dick Cheney shortly before hearing a case in which Cheney was a named party, pointed out when criticized that these tiresome outsiders just don’t know how being part of an elite works. “Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials,” Scalia helpfully pointed out in a 2004 memo about the hunt. He added, “I never hunted in the same blind with the vice president,” which was a tremendous relief to us all.
Unlike elected officials—or even prominent executive appointees—the justices enjoy near-religious deference from everyone in their orbit. They need never meet with the public or anyone who might question their greatness; need never account for their behavior off the bench to the public or Congress; need not release their travel or meeting schedules unless they wish to; and need never be questioned about their explanations (e.g., Scalia’s ridiculous “same blind” excuse) on the rare occasions that they even offer them. The Court’s press office does not routinely make available the justices’ speaking schedules or transcripts of their public remarks; in fact, the most recent transcript on the news media section of its site is an August 2019 speech by the late Justice Ruth Bader Ginsburg.
Would the Anglo-American edifice of ordered liberty collapse if the Court offered regularly scheduled tours of its historic building? What if justices made regular appearances to take questions from the public? Would the rule of law collapse if the justices revealed the names of those they meet with in chambers? And, most important, how has the nation allowed its most powerful court to exempt itself from the ethics rules that apply to judges of lower courts?
Nearly a year ago, during the oral argument in Dobbs, Justice Sonia Sotomayor wondered from the bench what effect a reversal of Roe would have on the Court itself: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” A year later, that stench has become rank; it smells to heaven. The institution is internally dysfunctional and externally aggressive, angrily demanding public obeisance while reaching for more unreviewable power. Its crisis endangers the country that the justices purport to serve.
This cannot continue; one way or another, the Court must change.
Scholars note that the concept of separation of powers may limit Congress’s ability to rein in this rogue tribunal. But that proposition hasn’t been tested. If Congress becomes functional again, it should enact a code of ethics for the justices, new rules for its jurisdiction and its “shadow docket,” and greater transparency about its deliberations.
If there are separation of powers problems, they will be tested before the Court. If the justices choose, they can simply strike down any reforms, reinforcing their invincibility and imperviousness.
But perhaps not; no human quality—not even the arrogance of power—is inexhaustible. Sometimes simple shame can, against the odds, find its way into the stoniest of hearts.
Repentance is powerful. Just ask the Reverend Rob Schenck.