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'The Supreme Court Is Burying Its Head in the Sand' Janine Jackson ([link removed])



Janine Jackson interviewed Law and Disorder Radio's Marjorie Cohn about evangelicals' Supreme Court lobbying for the December 2, 2022, episode ([link removed]) of CounterSpin. This is a lightly edited transcript.

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Politico: ‘Operation Higher Court’: Inside the religious right’s efforts to wine and dine Supreme Court justices

Politico (7/8/22 ([link removed]) )

Janine Jackson: Recent reports from Politico ([link removed]) and the New York Times ([link removed]) expose a pattern of improper lobbying of right-wing Supreme Court justices by wealthy evangelicals pushing conservative positions on social issues before the Court.

The long-term operation, dubbed the “Ministry of Emboldenment,” was revealed by Rev. Rob Schenck, who used to run the group Faith and Action ([link removed]) , which recruited rich donors and urged them to invite some justices—you won't be surprised which ones—to dinner, vacation homes and private clubs.

Changing minds wasn't necessary. The goal was to “stiffen the resolve of the Court's conservatives in taking uncompromising stances.”

For example, the stance that led to the elimination of rights of bodily autonomy ([link removed]) for half of the country's populace.

Schenck has now changed his colors ([link removed]) , and told the New York Times that “what we did was wrong.”

The focus for many is that in one of those private dinners, Samuel Alito appears to have tipped the 2014 Burwell v. Hobby Lobby ([link removed]) ruling, where the court said private companies can demand religious exemptions from the Affordable Care Act’s requirement that their health plans cover contraceptives, helping Hobby Lobby put together their PR campaign ([link removed]) in advance.

We're joined now by Marjorie Cohn ([link removed]) , professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and author of numerous books, including Drones and Targeted Killing: Legal, Moral and Geopolitical Issues ([link removed]-(ed-)-Cohn/9781566560030) . She's also co-host of Law and Disorder Radio ([link removed]) , joining us now by phone from San Diego.

Welcome back to CounterSpin, Marjorie Cohn.

Marjorie Cohn: Thanks for having me, Janine.
Truthout: Evangelical Lobbying Threatens Supreme Court’s Independence

Truthout (11/29/22 ([link removed]) )

JJ: We don't have a lot of time today, and I'd like to refer folks to your work at Truthout.org ([link removed]) for more details.

But I just want to say, for me, there's a question of focus here. Anyone can pitch, but someone has to catch. So as a citizen, I guess I'm moderately less interested in what horse hockey some people were selling than the fact that a good part of one of the three branches of government chose to buy it, and then purvey it, right?

This is deeper than a few fancy dinners.

MC: It is. This Rob Schenck you mentioned actually prayed with Scalia and Thomas in their chambers, invoking the sanctity of human life to encourage them to end abortion.

And since, Rob Schenck said ([link removed]) , the Supreme Court is the most insulated and isolated branch, "we've literally had to pray our way in there each step of the way." And he said that in 2000, he met and prayed with Scalia just 24 hours after the court issued Bush v. Gore ([link removed]) , basically handing the 2000 presidential election to George W. Bush.

But the news hook now about this, it's called Operation Higher Court, which took place from 1995 to 2018. It was an operation by Faith and Action, a right-wing evangelical nonprofit. And they basically cultivated 20 couples to travel to Washington, DC, and wine and dine Alito, Thomas and Scalia.

In 2014, Alito dined with one of the primary donors of Faith and Action, Gayle Wright. She left with inside knowledge about the result of the Hobby Lobby case.

Alito, sure enough, wrote the majority opinion, and Alito also wrote the majority opinion in the Dobbs ([link removed]) case earlier this year, which reversed Roe v. Wade. And four months before Dobbs came down, Alito's draft opinion was leaked to Politico ([link removed]) , and the final opinion largely tracked the draft.

Well, this is no coincidence that both of these decisions, Hobby Lobby and Dobbs, serve the conservative evangelical agenda, and both were leaked by people with advanced knowledge of the results.
NYT: Former Anti-Abortion Leader Alleges Another Supreme Court Breach

New York Times (11/19/22 ([link removed]) )

Both Gayle Wright and Alito have denied that this conversation took place before the Hobby Lobby decision came out. But both the New York Times and Politico have corroborated the conversation through contemporaneous conversations, emails and a timeline. So it does look like it really is true.

Now, one of the real outrages here, Janine, is that the Supreme Court justices—and I use that word advisedly; I don't think they are just, most of them—but they are not bound by the Code of Conduct ([link removed]) for US judges. There is basically no higher authority that tells Supreme Court members what they can and cannot do.

Under the Code of Conduct, judges have to avoid even the appearance of impropriety. And certainly this situation with the Hobby Lobby revelation creates the appearance of impropriety.

Now, Supreme Court members do have to recuse themselves from cases in which their impartiality may reasonably be questioned. But when they fail to do so, they don't give reasons most of the time; there's no enforcement.

And one of the canons of this code of conduct says that a judge has to disqualify himself where the judge's impartiality may reasonably be questioned, or when his spouse has an interest that could be affected substantially by the outcome of the proceeding.
WaPo: Ginni Thomas pressed 29 Ariz. lawmakers to help overturn Trump’s defeat, emails show

Washington Post (6/10/22 ([link removed]) )

Clarence Thomas' wife, Ginni, has been a prominent proponent ([link removed]) of the big lie that the 2020 presidential election was stolen from Trump. She sent 29 texts to then–White House Chief of Staff Mark Meadows urging him to reverse the election results, and she falsely told Republican state legislators in Arizona and Wisconsin that the authority to choose electors was “theirs and theirs alone.”

She was talking about the so-called "independent state legislature theory," ([link removed]) which says that only state legislatures can draw congressional maps. There is no review by any state court. And that very theory, the independent state legislature theory, is at issue in a case now pending before the Supreme Court, Moore v. Harper ([link removed]) , and on December 7, it will be orally argued before the Supreme Court, and we’ll see whether Clarence Thomas recuses himself. I would bet good money that he won't.

Now, the chairmen of the Senate and House Judiciary federal court subcommittees, Sheldon Whitehouse and Henry Johnson, wrote a letter ([link removed](Operation%20Higher%20Court).pdf) in September to Chief Justice John Roberts, and asked the Supreme Court to list the dinners and travel and lodging that the justices received from this Faith and Action, and also asked if any of these justices were aware of Operation Higher Court before the recent news reports.

On November 7, two months later, Roberts and the Supreme Court's legal counsel answered Whitehouse and Johnson’s letter ([link removed]) , and refused to respond to the chairmen's questions about the relationship between the justices and Operation Higher Court. They just wrote, basically, the justices rely on the Code of Conduct for United States judges in evaluating ethics issues.
Politico: Senior Democratic lawmakers demand answers on alleged Supreme Court leak

Politico (11/20/22 ([link removed]) )

Well, then on November 20, Whitehouse and Johnson wrote a letter ([link removed](Operation%20Higher%20Court%20Follow-up).pdf) to Roberts and the legal counsel, and asked “Have you opened an investigation into these allegations? Have you evaluated any of your practices and procedures?”

On November 28, the Supreme Court counsel wrote ([link removed]) to Whitehouse and Johnson, reiterating the denials by Alito and Wright, who denied that this conversation took place about Hobby Lobby, and also, this letter to Whitehouse and Johnson says, “There is nothing to suggest that Justice Alito's actions violated ethics standards.”

So basically the Supreme Court is apparently burying its head in the sand, saying, we didn't do anything wrong. And there are calls now for Congress to enact the Supreme Court Ethics, Recusal and Transparency Act ([link removed]) , which was passed by the House Judiciary Committee in May. And it basically requires the Supreme Court to set up its own code of ethical conduct.

Also there are calls for the Senate Judiciary Committee to hold hearings and investigate this apparent leak by Alito, where Rev. Rob Schenck would be one of the star witnesses.

JJ: Well, thank you. That covered a lot of the factual ground.

Let me just ask you one other thing. You note that justices are called on to recuse themselves in instances in which their impartiality could reasonably be questioned. And to me, that raises the question of who's going to question them. And that brings me back to the press corps, which is of course what we're here to talk about.

What do you see, finally, as the role of media here right now? The media played a role already in bringing these things to light, but going forward, what could reporters do?
Gallup: Supreme Court Trust, Job Approval at Historical Lows

Gallup (11/29/22 ([link removed]) )

MC: Yes. Well, I think that this story should get big coverage, and I think the story should be followed by both the corporate and the alternative media, and you and I are both doing that.

The reputation of the Court is, I think, probably at an all-time low ([link removed]) now, given the leak of the Dobbs decision and the overturning of Roe v. Wade ([link removed]) , and then now with this Alito Hobby Lobby story.

I think it's going to be very hard to just ignore it, maintain the denial that the court is apparently saying, that they didn't do anything wrong.

And I think Roberts is probably very, very concerned, and I think that this is not going to go away. But I think it needs to be covered continually by the media, and also pushing for the Supreme Court to actually develop a code of ethics that they operate under. And we'll see if anything comes from that.

And hearings—we're not going to see any hearings in the House come January, but we certainly might see hearings from the Senate Judiciary Committee, since that is still in Democratic hands.

JJ: All right then, we'll have to stop you there just for now. We'll obviously be coming back to this.

We've been speaking with Marjorie Cohn. Her recent piece, "Evangelical Lobbying Threatens Supreme Court's Independence ([link removed]) ," can be found at Truthout.org ([link removed]) . Marjorie Cohn, thank you as always for joining us this week on CounterSpin.

MC: Thank you so much, Janine.


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