Religious Liberty and the Right to Vacation in Jackson Hole

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Dahlia Lithwick: This ad free podcast is part of your slate plus membership.

Speaker 2: Special interest, dark money, influence completely surrounding the court and a court that is either inured to it so much that it doesn’t know it’s there, like a fish swimming in filthy water or is pretending that everything is okay because they want desperately to look like there’s nothing to see here, folks.

Dahlia Lithwick: Hi, and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law. And teetering above all of those things, the U.S. Supreme Court. I am Dahlia Lithwick, and we decided to get the band back together and put a little extra amicus in your feed. With this special off week episode, it’s a special leaked episode, if you will.

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Dahlia Lithwick: In order to consider the blockbuster story in last week’s New York Times, as reported out by Jodi Kantor and Jo Becker, Kantor and Becker were following up on a report by a former anti-abortion activist, the Reverend Rob Schenck, who founded a group called Faith and Action, an evangelical ministry aimed at high ranking government officials with its headquarters across the street, conveniently enough, from the private east entrance to the Supreme Court. As the story points out, Schenck raised more than $30 million between 2020 18 to give rich donors a pipeline to justices who needed to maybe have their spine stiffened a little in a series of religious liberty and abortion cases.

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Dahlia Lithwick: The Times focused on the fact that Schenck allegedly knew the outcome of the 2014 Hobby Lobby case weeks before it was announced at the court. Ostensibly, this was yet another leak at the High Court, similar to the Dobbs Leak we learned about last spring. The Times also published a letter that Schenck said he wrote to Chief Justice John Roberts in July alerting him to the alleged breach years ago. Schenck wrote that he thought the information might be relevant as part of an ongoing probe into the leak of the Dobbs decision. He says he received no response. But I think the justices loose lips is the least worrying part of a larger story about wealthy evangelicals pay to play access and a court that yet again appears to be just completely bought and sold by way of a brisk trade in access and influence.

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Dahlia Lithwick: Joining us to discuss this aspect of the story is Senator Sheldon Whitehouse. He is the United States senator for Rhode Island and chairman of the Senate Judiciary Subcommittee on Federal Courts Oversight, Agency Action and Federal Rights. Senator Whitehouse is brand new book is called The Scheme How the Right Wing Used Dark Money to Capture the Supreme Court. It was published just last month by the new press, and it traces this decades long right wing scheme to capture the courts, culminating in the seating of three Trump justices and ushering an era of a conservative supermajority intent on handing big wins to big business and the religious right. Senator Whitehouse, you and I have been talking about this almost as long as there has been an amicus podcast. First, congratulations on the amazing new book. And welcome back.

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Dahlia Lithwick: Second. Am I correct in asserting here that the focus on Alito as the Dobbs leaker is confusing and kind of distracting for a story that really is about how a handful of millionaires systematically funneled money through partisan interest groups and through, I guess, the Supreme Court Historical Society so that they could just buy access to justices that they wined and dined and vacationed with and I gather also prayed with. Is that not kind of the big story here?

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Speaker 2: The bigger story is the larger story for sure. And I think the larger story has an even larger component to it, which is that this aspect of lobbying influence using the Supreme Court Historical Society and private dinners and perhaps even vacations that go undisclosed with right wing wealthy individuals with interests before the court aligns with and runs in parallel with the Federalist Society influence over the justices and their willingness to go and basically do annual pep rallies with the Federalist Society.

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Speaker 2: And that runs parallel with the dark money effort that actually used the Federalist. Society as a venue to pick these justices to usher them onto the court. And then right down the hall from the Federalist Society, literally same building, same hallway. The Judicial Crisis Network, which ran the political campaigns and the TV ad barrages to attack Merrick Garland and supports Judges Gorsuch and Kavanaugh and Barrett.

Speaker 2: And you put all of that together and what you have is an absolute mess of special interest, dark money, influence, completely surrounding the court and a court that. Is either inured to it so much that it doesn’t know it’s there, like a fish swimming in filthy water or is pretending that everything is okay because they want desperately to look like there’s nothing to see here, folks.

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Dahlia Lithwick: And I guess here’s where I congratulate you on being sent up by the chief judge of the 11th Circuit at the Federalist Society gathering a couple of weeks ago in D.C. I, too, was namechecked as a crazy person and I guess.

Speaker 2: Kind of makes our case, doesn’t.

Dahlia Lithwick: It? Well, it’s amazing to me, just parenthetically, that when you write these fawning puff pieces about Leonard Leo and the Federalist Society in the outsize influence, those are actually lauded and celebrated. But when critics say the same things where hysterical conspiracy theorists with string boards hard to sort of square that one. But I do want to ask.

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Speaker 2: Setting aside, what the hell is a sitting judge doing going to a highly partisan judicial advocacy organization and stepping deliberately into a political debate? I mean, there was a time when judges wouldn’t do that, and it just shows how much the Overton Window for bad behavior by Federalist Society judges has slid.

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Dahlia Lithwick: Yeah, And we should note that Justice Alito got a standing ovation for his Dobbs decision at the same event and.

Speaker 2: Their pep rallies.

Dahlia Lithwick: Yeah. Also, a comedian, Justice Barrett, making jokes about being harassed at home.

Dahlia Lithwick: But I do want to ask you, given that some elements of this new New York Times piece had already been reported in Rolling Stone and Politico, I know you had written a letter to the court about this, and I know how diligently you’ve been trying to write about this whole meta plan. Was there any aspect of the new reporting last weekend that shocked you?

Speaker 2: No, actually, because we’ve been at this so long, but I’m getting pretty hard to shock. What took place was that we’d seen the activity with deliberately planned dinners with selected Federalist Society justices to connect them to very wealthy right wing individuals who would win them and buy them in very fancy locations. And in the course of that, wining and dining in part to them, their wish that they should be strong on right wing cultural issues. That’s pretty bad. If there’s a feedback loop so that in return for all of that hospitality, there are also getting previews of coming attractions and decisions so that they can get the CEO of the petitioner company a good seat in the court to enjoy and revel in their success. That makes it even a little bit smellier.

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Speaker 2: But the thing that really got me in all of this is that the Supreme Court, when we asked them about that and asked them specifics about that, what we got back was a letter saying, thank you so much for your interest. We have a code of ethics. Okay, great. You have a code of ethics, but how do you enforce it? What are the. How do you make inquiries? Where do you file a complaint? What’s the fact finding process? When does a determination get reached and by whom as to what actually took place? And Goodyear reported to let the public know that something happened.

Speaker 2: All of that architecture is nonexistent with the Supreme Court leaving the code of ethics just an empty walled declaration and their persistence in refusing to do the basic work of establishing whether or not an ethics violation took place is what is intensely frustrating. We can agree or disagree about a finding that they reached, but we have no process whatsoever and try to defend having no process whatsoever. And it’s a court, my God, it’s the Supreme Court. And they’re the defenders of having no process. It makes no sense. And it’s intensely frustrating.

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Dahlia Lithwick: One more piece of this that I think maybe we’ve both elided, but let’s say explicitly is one of the things that’s reported, at least in The New York Times piece, is that it’s not just the wining and dining in the influence and the benign sounding Supreme Court Historical Society. It’s also that there are parties who file amicus briefs who have interests in the cases. So this isn’t just the appearance of impropriety. This is actually having a dog in the fight, right?

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Speaker 2: Yeah. Oh, absolutely. And some of the like Justice Scalia was a particularly energetic guest at hunting trips we tracked with the help of a lawyer who’s looked at this stuff for a long time, many dozens. Of hunting trips that Justice Scalia took, which were undisclosed.

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Speaker 2: But the reporting of them, particularly in like small local papers or law school reports that got wind of it, revealed that it wasn’t just Justice Scalia going to a location. There was a whole little group, a little retinue of people who might have had connections with the fossil fuel industry for sure, had connections with the gun industry, and in some cases had filed briefs with the court on gun issues while they were at events with Justice Scalia. So there’s a lot of mischief, if I would call it, around the nondisclosure of personal hospitality. And the definition of personal hospitality has become just obscenely broad.

Dahlia Lithwick: And can we just dispense with the booth sider ism? I mean, is there an equivalent? You know, I’m thinking of attempts to knock, for instance, Justice Ginsburg, off the marriage equality cases because she had performed same sex marriages. I know that Justice Katju, Brian Jackson had to recuse from the Harvard affirmative action case this year. Is there something similar going on on the left side of the court that you and I just don’t know about, or the justices on the left far less inclined to have sort of prayer meetings and secret conclaves with wealthy donors whose money is laundered through the historical society.

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Speaker 2: I’m not aware of anything similar with respect to Justice Sotomayor or Justice Kagan or Justice Jackson. I think this systematized. Wealthy right wing engagement with right wing Federalist Society justices is pretty unique, not just with respect to the two sides of the court, but also in time. This has not been a practice for the court in the past.

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Speaker 2: In my view, I think we’ve come to a very peculiar moment in American history where we think it is okay for a private organization receiving unlimited secret contributions to be the vestibule, the turnstile through which judicial nominees have to go to get on the Supreme Court, and then to have people who have been involved in that process argue in front of the justices without proper disclosure about their connection. I mean, the whole thing, it just is really unprecedentedly bad in my view.

Dahlia Lithwick: So I want to just put meat on the bones of the ethics problem, because these are, you know, questions you’ve been pressing for years, certainly. And you and I have talked about it before. By its own explicit terms, the code of conduct for the US judges. Other Article three judges only governs the judges on the lower district courts in the federal appeals courts. It does not apply to Supreme Court justices, and the Supreme Court has been asked to and has in fact promised on occasion to promulgate its own ethics codes. It does not. I guess we heard from the Chief Justice, John Roberts, that they consult the code of conduct. You know, the way one might consult like AccuWeather, I guess.

Dahlia Lithwick: But as you said, as a result, not only is there no enforcement mechanism, but each justice is left to determine for themselves if and when they want to comply. You know, the cliche about the court is always that the chief justice has no power over the other justices because functionally, as the cliche goes, each of the nine justices chambers is in fact its own separate individual law firm. And so what you have is nine separate law firms that each adhere to or consult with the code and then adhere to as they see fit whatever parts of the code they want to comply with.

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Speaker 2: Yeah, which violates a judicial principle so old that it comes in the Latin memo. Jude X in Sue Coulson. Never a judge in his own cause. And we have the Supreme Court has set it up so that each Supreme Court justice is the judge in their own cause as to ethics violations. And there’s no process. There’s no procedure. There’s no structure to it.

Speaker 2: And you saw this roll out when Judge Kavanaugh was on the D.C. Circuit and was the subject of active ethics investigations. And the day that he went from the D.C. Circuit Court of Appeals to the Supreme Court, all of those ethics investigations stopped, not because they’d reached their conclusion, but because once he got to the sanctuary of the Supreme Court, there was no entity to pursue them any longer.

Dahlia Lithwick: Can we talk briefly before we talk about the Ethics Recusal and Transparency Act that you have introduced? Before we get there, I think we would be committing malpractice if we didn’t also talk about Clarence Thomas and Ginni Thomas, because even though they are not the subject of, you know, this recent story in The New York Times, it’s been an ongoing, almost two year story about the spouse of a justice, you know, texting Mark Meadows, calling state legislative officials and trying to have them change the outcome of election. How does you know, let’s stipulate for a minute that this is all up to Justice Thomas. He doesn’t have to explain. He doesn’t explain. But this is also of a piece because of the part of the ethics rules that say the standard is not impropriety, it’s the appearance of impropriety. Right.

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Speaker 2: Well, the whole Ginni Thomas episode is precisely illustrative of the problems that we are talking about. And it’s a double decker problem. The first deck of the problem comes because the original response to the question of whether Justice Thomas should recuse was him saying, and by the way, sidebar him just saying publicly not to anybody to whom it would be a false statement, not with any intellectual or investigative rigor, just putting it out there that he knew absolutely nothing, nothing, not a single thing, had no inkling of his wife’s insurrection activities. So believe that or not, it is a factual proposition and it is a factual proposition that lends itself to inquiry.

Speaker 2: And the chief justice had launched the martial of the court to make factual inquiry about the Dobbs opinion leak so he could perfectly well launch factual inquiry into what Justice Thomas knew and when he knew it. And he didn’t. Nothing was done. His word was taken as if it was legit.

Speaker 2: And then we had this most recent vote and a similar question again by Justice Thomas. But now we know that he knows what his wife was up to because everybody in America knows what his wife was up to, because that has been in the news, what his wife was up to. So whatever veneer there was that he had no clue about his wife’s activities was completely shattered and yet still no comment. Still no recusal, still no increase from the chief justice. Still just the pretense that this is all okay and that there’s nothing to see here, folks.

Dahlia Lithwick: Senator, I think one of the hiccups here is that the chief justice either has some kind of enforcement powers against his colleagues or he doesn’t. And one of the stories we always hear is, look, the chief justice has just a ninth vote. He has, you know, an administrative role at the Supreme Court. There are certain duties that come along with that. But he really doesn’t have authority over his colleagues. And then we hear, as you just said, well, he certainly had authority to launch an investigation into the Dobbs Leak and to decide who the investigators were and to determine that this was going to happen in secret. He has clearly some power. Can you help me understand, because I have told both of these stories at different times. Is he just one of nine justices who can do nothing if Clarence Thomas doesn’t want to abide by the ethical rules or does he have some meaningful power over his colleagues?

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Speaker 2: He has multiple roles. One is just one of nine justices, and he’s in that role when he’s writing his opinions. Every justice has the right to write their own opinions the way they want to, and nobody can tell them what to do as the chief justice. He also has the power to assign opinions when he’s in the majority, so that’s a little extra thing for him.

Speaker 2: But he also chairs the judicial conference, which looks at rules related to the courts, and that can create examples for the Supreme Court to work with. I think that he could summon the chief judges of the 11th Circuit courts to be a panel to which the court could refer ethics questions for independent advice and then produce a public report back to the court that could answer these questions in a public way and put some discipline into the private, self-serving decision making of the justices. I think that would be well within his power. And he’s shown that he can tell the marshal to go investigate stuff.

Speaker 2: So there’s more to it than just I’m just here one of nine. There are avenues through which he can bring his power as chief justice to bear on this question. And that sets aside the fact that as chief justice, if he were to talk about this in a different way, if he were to be proactive about understanding that there’s a problem that could make a. Very big difference in the conduct of his colleagues as well.

Dahlia Lithwick: Senator, I want to get to the portion of this show where you get to say I told you so, where you get to say Dahlia. You and I have been having this conversation as long as we’ve known each other.

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Speaker 2: Both we both get to say that, unfortunately.

Dahlia Lithwick: Well, but, you know, you you actually, I think, have something to say to the many, many, many people out there who just tend to have such a deep sense of learned helplessness around this issue that they just throw up their hands and say there’s nothing to be done. So I want to give you really an opportunity both to talk about the legislation that you’ve introduced with Representative Hank Johnson of Georgia that would at minimum create some robust ethics rules. But then I think after you sort of explain that, I really want you to take a moment and tell folks who have some kind of weird, magical thinking in which there is nothing whatsoever that anyone can do. We have to live this way. Why? They’re wrong.

Speaker 2: Yeah, I guess I’d start by saying that the public is beginning to come to understand that this is not a conservative court. This is a captured court. And indeed, even a very well-respected middle of the road reviewer of the court, Linda Greenhouse, used that exact word in a recent piece in The Atlantic magazine. And they’re captured in the same way that in the bad old days, a railroad commission would get captured by the railroad barons. So it would set the rates for the railroad that the railroad barons wanted. That’s the model that we have to look at in terms of what they achieved.

Speaker 2: The method of achieving it, we have to look at it as akin to an intelligence community covert operation. A lot of the tradecraft of covert operations was used as they stealthily crept up to and captured the Supreme Court and now instructed in what it is that they wish to get done. And so I think once people have those two thoughts in mind that this is a captured court, not a conservative court, and that the manner in which it is captured is akin to an intelligence type covert operation, then you can begin to think about what the solution is. Once you’ve identified the illness, you could begin to think about the cure.

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Speaker 2: So I think it’s really important for all of us to focus on the problem first and not get too far ahead of our skis and start offering solutions to problems that the public has not yet. Gotten accustomed to. And we’ve got work to do, which is one of the reasons I wrote the book. I didn’t blow up those weekends weekend’s night for nothing. I the people are judge and they need to understand what it is, what our case is, so that they can then decide whether to permit extraordinary relief in the way of major changes to the Supreme Court.

Speaker 2: But the easy stuff ought to be, look, recusals, you’ve got to explain and there’s got to be some fact finding around the dark Money in and around the court has got to be disclosed. These fake and coming in as masks for other special interests who don’t disclose themselves that crap has just got to end. And this business of receiving gifts of hospitality and then pretending that it’s personal hospitality, even if you receive it from somebody you’ve never met. It’s not legit and you’ve got to. That’s basic stuff we got to clean up. Then you can move on to term limits, which I think are appropriate. I have a bill to that effect. And then ultimately, I think we need to reconsider whether for this day and age, and particularly after this unpleasant history, nine is still the correct number four Supreme Court justices.

Dahlia Lithwick: So I think maybe my very last question is this. Is there any utility in having I know Senator Durbin, chairman of the Judiciary Committee, said in a statement that, you know, this is very serious and it highlights the absence of federal ethics rules. Is there some utility in having a just full on January six style hearing in which all of these complaints and allegations that have piled up over the years get aired and surfaced and we begin to have, at minimum, a conversation about what you describe as the problem, so that if nothing else, there is some sense that this is kind of being aired publicly and in a big, coherent way, as opposed to these kind of tiny drip, drip revelations that almost don’t get covered.

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Speaker 2: Absolutely. Positively. Yes. And one of the reasons we need to do that. Is. Because if you are. A little consortium of big special interests that have spent more than half a billion dollars to get control over the Supreme Court. The last thing you want is to have the legitimacy of your captured court questioned. It doesn’t work. Your captured court is only effective for you to the extent that it has credibility. So there’s going to be an enormous effort to say, move along, folks, nothing to see here.

Speaker 2: This is all perfectly normal. You see these justices just immensely invested in claiming their own legitimacy without looking at the real problems that are in front of them that even other federal judges see. And they just pretend not to see it again. That faux legitimacy that they are trying to preserve is something that has to be taken on because it’s not real legitimacy. It’s full legitimacy. And we need to make the case in an organized way as to what happened, why it happened, who did it and what it means.

Dahlia Lithwick: Senator Sheldon Whitehouse is United States senator for Rhode Island. His brand new book is called The Scheme How the Right Wing Used Dark Money to Capture the Supreme Court, published just last month by the new press. It really is, I think, a must read, and I think that for those of us who’ve been sort of sounding the alarm for years and years, that this thing was happening to the extent that you were only now learning that it has happened. I think this is the book you need to read. Senator Whitehouse, thank you so much as ever for your diligent attention to this and for your time today.

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Speaker 2: And you Dahlia for being such a champion yourself. Thank you.

Dahlia Lithwick: And that is a wrap for this episode of Amicus The Off Week. Yeah. Edition. Thank you so much for listening in and thank you so very much for your letters and your questions. You can keep in touch at Amicus at Slate.com. You can always find us at Facebook slash Amicus podcast. Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcast, The Slate. We will be back with another regular episode of Amicus on December 3rd. Until then, take.