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Opinion The court’s supremely obtuse response to its ethical problems

From left, Supreme Court Justice Samuel A. Alito Jr. and his wife Martha Bomgardner, Justice Elena Kagan and Justice Neil M. Gorsuch attend George Mason University's Antonin Scalia Law School dedication of a statue of the late Supreme Court justice in Arlington, Va., on Oct. 4, 2018. (Katherine Frey/The Washington Post)

The Supreme Court sent a two-page letter to Democratic lawmakers looking into allegations of a leak by Justice Samuel A. Alito Jr. or his wife. Words weren’t really necessary; a see-no-evil monkey emoji would have aptly summarized the court’s response.

The letter, by Ethan V. Torrey, legal counsel to the court, could scarcely have been more obtuse. The New York Times reported earlier this month the story of a conservative Ohio couple, Donald and Gayle Wright, who were deployed by a religious rights, antiabortion organization to befriend the Alitos and other conservative justices as part of an influence campaign.

The Rev. Rob Schenck, who headed the organization, said that Gayle Wright had tipped him off in advance about the outcome and authorship of a 2014 case, Burwell v. Hobby Lobby, involving religious employers’ obligations to provide contraceptive coverage. Gayle Wright and the Alitos denied any leak (Donald Wright died in 2020), but contemporaneous evidence bolsters Schenck’s claim of advance knowledge.

“Rob, if you want some interesting news please call. No emails,” Gayle Wright wrote Schenck the day after the Alitos hosted the Wrights for dinner at their Virginia home. Wright’s unconvincing explanation? “I was so excited to tell him that Justice Alito had actually gotten in his car to take me home,” she told The Post. “We wanted to talk to him and share it with him.”

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The Times article, along with coverage by Politico and Rolling Stone, depicts a disturbing, coordinated effort by conservative activists to insinuate themselves into the lives of sympathetic justices via six-figure donations to the Supreme Court Historical Society and access to vacation spots such as the Wrights’ Jackson, Wyo., home.

A Supreme Court that took ethics seriously would want to get to the bottom of this smarmy arrangement. That is not, apparently, this Supreme Court.

Chief Justice John G. Roberts Jr. didn’t bother to respond to a July letter from Schenck alerting him to the episode. But a nonresponse might have been preferable to Torrey’s legalistic and defensive letter to Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.), who had asked the court about what plans it had to investigate or refine its ethics policies.

First, Torrey wrote, Alito denied leaking any confidential information and Schenck’s claims were “uncorroborated.” So, case closed? Imagine a chief executive who receives information that one of his senior officers might have leaked inside information. The officer denies it, but there are some indicia of advance knowledge. The chief executive would be negligent in not probing further. The chief justice might prefer that the whole issue of leaks go away — there’s been no word from the court about its investigation into the leak last spring of the draft opinion in the Dobbs abortion case — but head in the sand is not a good look.

More disturbing was Torrey’s dismissive attitude toward the ethics questions embedded in the episode. “There is nothing to suggest that Justice Alito’s actions violated ethics standards,” he wrote. “Relevant rules balance preventing gifts that might undermine public confidence in the judiciary and allowing judges to maintain normal personal friendships.”

Judicial Conference gift regulations, he added, “provide that a judge may not accept a gift from a person seeking official action from or doing business with the judge’s court or whose interests may be substantially affected by the performance or non-performance of the judge’s official duties.”

Fine — except that Torrey went on to apply that standard in the most grudging possible way: “The Wrights owned a real estate business in Dayton, Ohio, and to our knowledge, they have never had a financial interest in a matter before the Court.”

But the Wrights — as Torrey knows — weren’t some random property owners who happen to have encountered the Alitos. They were interested, Gayle Wright told the Times, in “all cases related to biblical issues.” In a newsletter, the Wrights explained that they backed Schenck’s Operation Save our Nation “because we firmly believe that if we can reach our appointed and elected officials in Washington, DC with the Word of God, it is bound to have a major impact on the attitudes and actions of those in a position to shape and interpret our laws.”

Alito clearly understood the Wrights’ interest in the court. He recommended that Gayle Wright attend a lecture at the court by First Liberty Institute President Kelly J. Shackelford, whose organization brings religious liberties cases. “Sam told us that Kelly is someone we should know,” Wright wrote to Schenck in 2013.

Nor were the Alitos the only ones the Wrights had managed to befriend. “Lunch with CT on Monday, Sam on Wednesday, dinner at court on Monday, Dinner with Maureen on Wednesday,” Wright wrote in a 2016 email, apparently referring to Thomas, Alito and Justice Antonin Scalia’s widow, Maureen. Donald Wright’s obituary noted that “the late Antonin Scalia enjoyed hunting and fishing trips with the family.” Who paid for those hunting and fishing trips?

This is an extraordinary level of private access to the justices. Accepting hospitality from the Wrights — whether or not secrets were shared — sounds like just the kind of gift “that might undermine public confidence in the judiciary.”

In a statement, Whitehouse and Johnson called Torrey’s letter “an embodiment of the problems at the Court around ethics issues.” This seems like a fair diagnosis. And Roberts should keep in mind: If the patient isn’t willing to take steps to heal itself, others will step in to administer the necessary medicine.

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