Editor’s Note: Mary Ziegler is the Martin Luther King Jr. professor of law at the University of California, Davis and author of the book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.” The views expressed here are her own. Read more opinion on CNN.
The Supreme Court’s reputation was already in question when The New York Times released an exposé over the weekend about another alleged breach at the high court.
Earlier this year, there had been revelations that Ginni Thomas, a conservative operative married to Justice Clarence Thomas, repeatedly urged former White House chief of staff Mark Meadows to overturn the results of the 2020 election.
Some legal experts suggested that Clarence Thomas should have recused himself from cases involving the 2020 election, but he did not. (In a statement before meeting with the January 6 committee, Ginni Thomas said she never discussed her campaign activities regarding the 2020 election with her husband.)
In May came the unprecedented leak of a full draft of an opinion in Dobbs v. Jackson Women’s Health Organization dismantling federal protection of abortion rights.
The Dobbs leak set off an internal investigation — which is still ongoing — and reportedly poisoned the atmosphere at the court; another round of leaks soon followed around the possibility that some wavering had occurred from within on overturning Roe v. Wade, the landmark abortion rights case.
The leak prompted fierce criticism, especially from within the court. Justice Samuel Alito, the author of the Dobbs majority, recently called the leak a quote, “grave betrayal,” in an appearance before the conservative Heritage Foundation, suggesting that it put the lives of some of the high court’s conservative justices at risk.
By the end of the summer, it seemed that two things were true. First, this series of revelations had wreaked havoc on the court’s public image, convincing many Americans that it was a profoundly partisan institution.
And, second, members of the court’s conservative supermajority did not much seem to care.
Just look at what happened with Dobbs: Despite months of controversy and plummeting poll numbers, the court released an opinion reversing Roe that was functionally identical to the one leaked in May. Alito, author of the Dobbs opinion, even dropped in a paragraph about the court’s legitimacy, suggesting that it was not his job to worry about what the American people think.
This latest bombshell about anti-abortion groups allegedly getting tipped off in 2014 about a yet-to-be-released blockbuster ruling will test if the justices have to care about the court’s legitimacy after all.
The New York Times reported that the Rev. Rob Schenck, a former anti-abortion activist, had spent years seeking influence at the Supreme Court, developing a network of top donors and court insiders. Schenck alleges that his sources formed close relationships with Thomas, Alito and Justice Antonin Scalia — bonds so close that one couple allegedly received a tipoff about the result in a major case, Burwell v. Hobby Lobby Stores, Inc., at a dinner with Alito and his wife.
The Hobby Lobby case involved a challenge to the so-called contraceptive mandate of the Affordable Care Act, which required employers to cover all female contraceptives approved by the Food and Drug Administration. The owners of some for-profit businesses argued that these forms of birth control were actually abortion-inducing drugs — and that forcing employers to cover them violated employers’ rights.
According to the Times, Schenck said he was told that the employers would win the case from a conservative donor who had close social ties to Alito and his wife — and that Alito had written the majority opinion.
Schenck wasn’t present when his sources allegedly received news about the ruling, but several acquaintances report his telling the same story about the 2014 Hobby Lobby decision, the Times reported. Schenck’s emails from 2014 and beyond also reinforce that he had some kind of inside information about the case and expected his side to win it, according to the Times.
In a statement the Supreme Court provided to CNN on Saturday, Alito called the tipoff allegations concerning the dinner conversation “completely false.”
In an interview with CNN, the donor cited by Schenck also denied allegations of receiving information about the Hobby Lobby ruling, though she admitted that she and her husband dined at Alito’s home.
But this report is the last thing the court needed with its approval ratings already at an all-time low.
It hasn’t always been this way. In the 1970s, Americans’ trust in government institutions shattered in the aftermath of the Vietnam War and revelations about then-President Richard Nixon’s involvement in Watergate, a break-in to the headquarters of the Democratic National Committee and subsequent cover-up. But the Supreme Court long seemed to be an exception.
On former President Donald Trump’s watch, that view was to change dramatically. Trump kicked things off by promising not just that his nominees would be conservative originalists but that they would guarantee the reversal of Roe.
With three Trump nominees on the court, the justices delivered the most conservative wins since 1931, according to an NPR report, citing statistics compiled by professors at Washington University and the University of Michigan.
And it wasn’t just the number of wins — it was how far to the right the court moved. The justices opened the door to displays of religious faith from public school teachers and coaches, and an expansion of public funding for religious schools.
The court also hamstrung the Environmental Protection Agency and cast doubt on the power of other agencies, created a super-right to bear arms that would make it hard to pass any gun regulations and eliminated the right to abortion, even rejecting the argument that abortion restrictions constituted sex discrimination in violation of the Equal Protection Clause — a claim that neither the petitioners nor the respondents in the case had raised.
The message was clear: The court’s conservative majority was here to stay — and making no apologies for the revolution it was working in the law, no matter how deeply unpopular it was becoming.
By the end of the summer, the court’s reputation had taken a nosedive, but the conservative justices hardly seemed to care. They seemed convinced that they truly were insulated from the will of the people.
It’s true that the justices hold lifetime appointments — and that no justice has ever been successfully removed through impeachment. But historically, there were other ways to hold the court accountable — threats to strip the court of jurisdiction, changing the number of justices or even just ignoring the justices’ rulings.
The current conservative majority seems poised to continue making major changes. The court could end affirmative action, further gut the Voting Rights Act, give state legislatures the power to upend federal elections, further curb the power of the EPA and allow religious business owners to refuse service to LBGTQ customers.
The New York Times article on the court’s alleged leak will deal the court’s reputation another blow. Americans want the court to be above partisan politics (less than 20% polled recently by Pew think that the court should bring their political views into decision making), but a growing number of voters think that the court is a partisan institution.
Now, it seems the justices are not just delivering policy wins to one side of the aisle but have developed inside relationships with conservative organizations.
At a minimum, doing so creates a horrible impression for Americans promised that the justices will be neutral arbiters of the law. At worst, it’s a sign of deep corruption. (The Code of Conduct for United States Judges provides ethical guidance for lower court judges but specifically does not cover Supreme Court justices.)
The court seems convinced that it can continue on its current trajectory no matter how unhappy Americans are. If that’s true, Americans will lose trust in yet another institution, and the court will lose touch with the will of the people.
Both of those things would be dangerous for American democracy. And so, for everyone’s sake, we have to hope that there is some accountability for the court after all.