Justice Alito Strongly Denies Accusation of Leaking 2014 Opinion

Justice Alito Strongly Denies Accusation of Leaking 2014 Opinion
U.S. Supreme Court Justice Samuel Alito speaks at Georgetown University in Washington on Feb. 23, 2016. (Chip Somodevilla/Getty Images)
Matthew Vadum

Supreme Court Justice Samuel Alito denied being involved in an alleged leak of a religious-freedom decision eight years ago, after a New York Times article on Nov. 19 first reported the leak and alleged that Alito may have been involved in it.

The media report comes as the Supreme Court continues to investigate the unprecedented leak earlier this year of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, in which the court overturned Roe v. Wade and held that there’s no constitutional right to abortion, thereby returning the regulation of abortion to the states.

The 5–4 opinion in Dobbs, written by Alito, was formally released by the court in June. Alito described the leak as a “grave betrayal.”

Alito also wrote the majority opinion (pdf) in Burwell v. Hobby Lobby (2014), in which the court held 5–4 that under the Religious Freedom Restoration Act of 1993, a “closely held” business doesn’t have to offer birth control coverage to employees if the company is opposed to contraception on religious grounds.

Hobby Lobby operates a successful chain of arts and crafts stores. Company officials took a public stance against the Affordable Care Act of 2010, citing the Obama-era law’s mandated contraception and morning-after pill coverage for employees. It was reported last month that founder David Green, an evangelical Christian who has a net worth of $14 billion, has given away the company’s voting stock because he “chose God.”

The Hobby Lobby ruling earned Alito the ire of the left, just as in June of this year, when the conservative jurist authored the majority opinion in Dobbs.

The Dobbs decision—a draft of which was leaked to the media earlier this year—prompted death threats and protests at conservative justices’ homes, a foiled attempt to assassinate Justice Brett Kavanaugh, and targeted harassment of justices in public by left-wing groups.

The NY Times article states that the Rev. Rob L. Schenck, formerly a pro-life leader who used to run the nonprofit group Faith and Action in the Nation’s Capital, sent a letter (pdf) to Chief Justice John Roberts in July claiming he learned of the outcome of the Hobby Lobby case three weeks before it was officially handed down eight years ago.

In the letter, Schenck said he obtained the inside information when a donor to his nonprofit told him she'd dined at the home of Alito and his wife before Hobby Lobby was decided and learned during the dinner that the court would rule in favor of the company. Schenck wrote that he used the information to prepare for the upcoming decision and advised Hobby Lobby’s CEO Steve Green, the son of David Green, of the ruling days before the opinion was formally published.

“Considering there may be a severe penalty to be paid by whoever is responsible for the initial leak of the recent draft opinion [in Dobbs], [I] thought this previous incident might bear some consideration by you and others involved in the process. Of course, I would be happy to fully cooperate should you find any value in other details surrounding what I have transmitted here.”

The NY Times article acknowledges that “Schenck’s account of the breach has gaps,” but states that there’s “a trail of contemporaneous emails and conversations that strongly suggested he knew the outcome and the author of the Hobby Lobby decision before it was made public.”

Schenck said he learned in advance of the Hobby Lobby opinion because, in the newspaper’s words, “he had worked for years to exploit the court’s permeability.”

Schenck “gained access through faith, through favors traded with gatekeepers and through wealthy donors to his organization, abortion opponents whom he called ‘stealth missionaries,’” according to the NY Times.

The Washington Post reported on Nov. 19 that the donor mentioned in Schenck’s letter was Gayle Wright. Wright said she discussed the Hobby Lobby lawsuit with Schenck but, in the media outlet’s words, “emphatically denied having spoken with Alito or his wife at dinner about the case or its outcome.”

“It’s just not true. He didn’t discuss it at all,” Wright said of Alito, according to The Washington Post. “It’s a cardinal rule. You don’t ask or discuss a case with a justice. They wouldn’t want to be your friends anymore.”

Alito issued a statement denying there was a Hobby Lobby leak.

“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,” Alito said. Wright’s husband, Donald Wright, who also attended the dinner, is now deceased.

“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,” Alito said in the statement.

“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.”

In the years since the Hobby Lobby decision, Schenck has moved away from his previous embrace of conservative causes.

On his personal website, he endorsed Democrats in the recent congressional elections, saying Republicans now stand for “sinfulness.” Schenck also denounced former President Donald Trump for what he called the “utterly unwarranted, incredible, and many-times-legally-disproven assertions” that Democrats “rigged the last presidential election.”

Schenck also denounced the Dobbs decision, saying it would harm “hundreds of thousands of women facing unwanted pregnancies.”

Matthew Vadum is an award-winning investigative journalist.
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