In written testimony, Schenck, who in recent years has broken with the religious right over issues including abortion and gun rights, said he encouraged his recruits to use tactics like donations to the Supreme Court Historical Society to meet justices — and to parlay those encounters into deeper relationships to achieve their objectives. Some recruits wrote amicus briefs in cases before the court, his testimony says.
The testimony was released publicly at the start of the hearing and included allegations Schenck has made previously to Rolling Stone, Politico and The New York Times.
He was subpoenaed to testify as part of an effort by Democrats on the Judiciary Committee to strengthen ethics rules for justices, who — unlike lower court judges — are not bound by any code of conduct and are responsible for policing themselves. Critics say that structure allows for ethical loopholes that undermine public faith in the court’s independence.
Committee Chairman Jerrold Nadler (D-N.Y.) said Schenck’s planned testimony illustrates that “Supreme Court justices cannot effectively police” their own conduct and that without stronger disclosure requirements and a code of conduct justices can “accept overtures from those seeking to influence the court with little to no transparency.”
But Rep. Jim Jordan (R-Ohio) — who as the committee’s ranking Republican is likely to become chairman when his party assumes control of the House in January — disputed the need for the hearing, dismissing some of Schenck’s allegations as “fake.” Instead of listening to Schenck, Jordan said, the committee should be investigating the unprecedented public leak this spring of a draft of the Dobbs v. Jackson Women’s Health Organization decision, which overturned the constitutional right to an abortion established by Roe v. Wade.
In May, the House Judiciary Committee approved a bill that would require the Supreme Court to adopt a code of conduct and stronger disclosure standards for gifts and income any justice receives. The bill, which has not been voted on by the full House, would also strengthen recusal requirements and require anyone filing an amicus brief to disclose details about who funded and participated in drafting those briefs. A companion measure is awaiting action in the Senate.
Donald K. Sherman of the watchdog group Citizens for Responsibility and Ethics in Washington told the committee Thursday that reform is badly needed for rules governing gifts to Supreme Court justices, recusals, spousal conflicts of interest and outside speaking engagements.
About Schenck’s efforts, Sherman said in his prepared testimony that “when people buy this level of access, it creates among the American people the powerful impression that they are buying influence. And that, in turn, feeds into the crises of confidence and legitimacy that threaten the very foundations of the judiciary.”
Schenck told the Times last month that Operation Higher Court succeeded in breaching the court’s code of silence, alleging that “stealth missionaries” Gayle and Don Wright learned the outcome of a high-profile 2014 religious freedom case while dining at Justice Samuel A. Alito Jr.’s house, before the opinion was released. The Wrights then shared that information with Schenck, he said.
Alito has strenuously denied that he or his wife shared any information about the outcome of Hobby Lobby v. Burwell, and Gayle Wright has denied that she learned about the outcome from them. (Don Wright is deceased.)
Jordan sought to undermine Schenck’s credibility as a witness Thursday by getting him to admit that some details in a book Schenck wrote about the court were inaccurate. “You got the key detail wrong and now you remember an additional detail,” Jordan said after displaying a poster with text from Schenck’s book. “We’re supposed to take your word over Justice Alito’s word, over Gayle Wright’s word?”
Even before Schenck went public with his explosive story about Alito, the court was facing declining approval ratings and eroding public trust. Scrutiny of court ethics has mounted amid the anonymous leak of Alito’s draft opinion striking down Roe v. Wade this spring and questions about whether efforts by Virginia “Ginni” Thomas to reverse the 2020 presidential election results should prompt her husband, Justice Clarence Thomas, to recuse himself from litigation related to that issue.
Ginni Thomas pressured lawmakers in Arizona and Wisconsin to “choose” their own presidential electors and urged White House Chief of Staff Mark Meadows to keep fighting to overturn the election results. Yet when Donald Trump tried unsuccessfully to block congressional investigators from accessing White House documents related to Jan. 6, 2021, Justice Thomas did not recuse himself — and was the only member of the court to note his dissent and side with the former president.
Mark Paoletta, a lawyer who has represented Ginni Thomas in her communications with House investigators examining Jan. 6, and who is close to both Thomases, also testified Thursday. He accused Democrats of “smearing the court to encourage the public to question its legitimacy” because lawmakers disagree with recent rulings from the court’s conservative majority.
Paoletta called Schenck’s allegations unfounded and said his lobbying efforts had “zero impact” on the conservative justices his donors targeted.
Thomas was one of the stealth missionaries’ targets, according to Schenck. In his written testimony, Schenck recalls Thomas inviting him into his chambers to see a plaque of the Ten Commandments, on display in the entryway to his office, that was given to him by the Wrights — the couple who dined with Alito and his wife.
A court spokesperson did not immediately respond to requests for comment on Schenck’s claims about specific justices.
Schenck was for many years an ardent antiabortion activist, helping to establish a Christian ministry in 1994 that held Bible study and prayer sessions with members of Congress and their staff. In 1996, he and his team decided that the ministry — which came to be known as Faith and Action — should expand to the Supreme Court, according to his written testimony.
Concluding that his work as an activist might make it difficult for him to get close to the justices, Schenck recruited lower-profile missionaries to “‘adopt’ a designated Justice (with their spouse, if applicable), first as a prayer concern, then as possible conversation partners, and ultimately as familiar acquaintances, if not friends,” Schenck singled out the Supreme Court Historical Society as an organization that could serve as a conduit to conservative justices, though he says in his testimony that no one at the society was aware of his influence operation.
The arrival of Chief Justice John G. Roberts Jr. in 2005 ushered in a “more relaxed, less guarded atmosphere inside the Court” that made it easier for his missionaries to operate, Schenck said in his written testimony. According to his written testimony, he arranged for the president of Hobby Lobby, a craft store chain, and his wife to attend a Christmas party where they could talk to Roberts “and other likely sympathetic members of the court” about their plan to establish a Bible museum in Washington.
Schenck says he began questioning his community’s views on social issues about a decade ago. In 2018, he shuttered Faith and Action. Its programs and Capitol Hill building were absorbed into Liberty Counsel, a conservative group that has argued high-profile religious freedom cases before the Supreme Court.
Schenck’s written testimony also disclosed a previously unreported detail of the alleged leak of the Hobby Lobby ruling, a landmark decision by Alito that involved contraceptives and religious rights. After Faith and Action sent a message to donors praising the opinion and Alito, Schenck wrote, he received an email from Gayle Wright.
“I sent your email about hobby lobby [sic] case to Sam,” referring to Alito, the email said, according to Schenck. “He sent me an email back saying he appreciated your comments very much. How about that?”
Wright did not respond to a request for comment Thursday.
Schenck also described the alleged leak in a letter he sent to Roberts in July, as the court undertook an investigation into the more recent leak of the full draft opinion striking down the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization.
He told the committee Thursday that he wrote to Roberts “principally out of the concern that a court subordinate would unfairly take the blame for the Dobbs leak, suffering draconian punishment. I knew a justice would face no consequence for such a breach.”
Rep. Hank Johnson (D-Ga.) and Sen. Sheldon Whitehouse (D-R.I.), who have long pushed for ethics reform at the Supreme Court, have sent multiple letters to Roberts seeking information about “Operation Higher Court” and about any court investigations that may have been opened into attempts to improperly influence justices.
The Supreme Court’s legal counsel, Ethan V. Torrey, did not directly answer the lawmakers’ questions in his written responses to those letters, instead saying the justices evaluate their own ethics issues and rely on the code of conduct that governs lower-court judges as they do so.
Congressional action is not required to strengthen ethics requirements for the justices; the court could create a code of conduct on its own.
Three years ago, Justice Elena Kagan told a congressional committee that the justices were “very seriously” looking at the question of whether to have a Code of Judicial Conduct that’s applicable only to the U.S. Supreme Court. But the justices have said little on the matter since. In his annual message about the state of the judiciary last December, Roberts said such decisions should be made by that branch alone.
This is a developing story. It will be updated throughout the hearing.
