Courts

Samuel Alito Only Thinks Supreme Court Leaks Are The Worst When He’s Not The One Doing The Leaking

Well, well, well. What do we have here? Another SCOTUS leak story? Fascinating.

By Kathryn Rubino on November 21, 2022 3:15 pm
Supreme Court Justices Samuel Alito And Elena Kagan Testify Before The House Appropriations Committee

(Photo by Chip Somodevilla/Getty Images)

You remember, of course, the — let’s call it unique — way the United States learned the Supreme Court was taken away the reproductive freedom enjoyed in this country for 50 years. The draft decision in Dobbs v. Jackson Women’s Health was leaked ahead of the publication of the decision — not that the early release date changed the content of the final opinion much — and the legal community (or at least a specific portion of it) seemed way more offended by the leak than by the content. (Not that Dobbs was the first SCOTUS abortion case leak.) To be clear — the curtailing of rights is infinitely more offensive than the circumstances under which we’re told about it. And the top of the list of legal figureheads incensed by the leak was the author of the majority opinion, Samuel Alito. Well, now there’s a delicious bit of irony to enjoy over Alito’s outrage.

Over the weekend, the New York Times published an article alleging another Supreme Court decision leak. But at the center this leak, of the 2014 decision in Burwell v. Hobby Lobby Stores, Inc., is none other than Sam Alito.

A former anti-abortion leader, Reverend Rob Schenck, has come forward and said he was told about the Hobby Lobby decision in advance of the published opinion.

In a letter to Chief Justice John G. Roberts Jr. and in interviews with The New York Times, the Rev. Rob Schenck said he was told the outcome of the 2014 case weeks before it was announced. He used that information to prepare a public relations push, records show, and he said that at the last minute he tipped off the president of Hobby Lobby, the craft store chain owned by Christian evangelicals that was the winning party in the case.

In his self-styled confession, Schenck says that, given the threat of repercussions for the Dobbs leaker, he was compelled to inform the Court — and the Times — about this prior leak that he traces to a dinner that Alito shared with some of Schenck’s donors:

In early June 2014, an Ohio couple who were Mr. Schenck’s star donors shared a meal with Justice Alito and his wife, Martha-Ann. A day later, Gayle Wright, one of the pair, contacted Mr. Schenck, according to an email reviewed by The Times. “Rob, if you want some interesting news please call. No emails,” she wrote.

Mr. Schenck said Mrs. Wright told him that the decision would be favorable to Hobby Lobby, and that Justice Alito had written the majority opinion. Three weeks later, that’s exactly what happened. The court ruled, in a 5-4 vote, that requiring family-owned corporations to pay for insurance covering contraception violated their religious freedoms. The decision would have major implications for birth control access, President Barack Obama’s new health care law and corporations’ ability to claim religious rights.

As you might imagine, the death throes of Twitter has had lot to say about this scandal:

Alito has denied that he leaked the Hobby Lobby decision.

Justice Alito, in a statement issued through the court’s spokeswoman, denied disclosing the decision. He said that he and his wife shared a “casual and purely social relationship” with the Wrights, and did not dispute that the two couples ate together on June 3, 2014. But the justice said that 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.”

Though Schenck has admitted he was not at the dinner in question, the Times uncovered some contemporaneous evidence supporting his story.

Mr. Schenck was not present at the meal and has no written record of his conversation with Mrs. Wright. But The Times interviewed four people who said he told them years ago about the breach, and emails from June 2014 show him suggesting he had confidential information and directing his staff to prepare for victory. In another email, sent in 2017, he described the disclosure as “one of the most difficult secrets I’ve ever kept in my life.”

Regardless of what you think about Schenck’s story, it won’t help the Court’s mission to reestablish its legitimacy.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).