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Justice Alito denies disclosing 2014 Hobby Lobby opinion in advance

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Supreme Court Justice Samuel A. Alito Jr. speaks at the Federalist Society's 40th anniversary at Washington's Union Station on Nov. 10. (Jose Luis Magana/AP)

Justice Samuel A. Alito Jr. denied an allegation from a former antiabortion activist that Alito or his wife disclosed to conservative donors the outcome of a pending 2014 case regarding contraceptives and religious rights.

The New York Times reported Saturday that Rob Schenck, who on his website identifies himself as a “once-right-wing religious leader but now dissenting evangelical voice,” said he was told the outcome of the case, Hobby Lobby v. Burwell, several weeks before it was announced. Schenck said a conservative donor to his organization relayed the information after a dinner with Alito, who wrote the majority opinion in the case, and the justice’s wife.

But the donor, Gayle Wright, told the Times and affirmed in an interview Saturday that the account given by Schenck was not true, and Alito issued a statement denying it as well.

“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.

“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,” the statement said. “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.”

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In response to questions Saturday about the denials from Alito and Wright, Schenck confirmed in a statement “the extensive details and facts” he provided in the Times account and declined to comment further.

Schenck’s allegation comes after the unprecedented leak this spring of Alito’s draft opinion upholding a restrictive Mississippi abortion law and overturning the constitutional right to abortion established in Roe v. Wade nearly 50 years earlier. The leak was a shocking breach of the court’s secretive and closely held deliberations, and Alito recently denounced it as a “grave betrayal of trust.”

The episode added to growing debate over the legitimacy and behind-the-scenes operations of the Supreme Court at a time when public approval of the court has sunk to historic lows.

Chief Justice John G. Roberts Jr. announced an investigation into the origins of the leak soon after it was published in early May but has not provided any further information. Some justices have said in public appearances that they expect a report or updates, but they have not been specific.

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According to the Times, Schenck sent a letter to Roberts in June volunteering the information about the 2014 dinner with the Alitos, which he did not attend. He wrote that the “series of events” that he was disclosing “may impinge on the investigation you and your delegates are undertaking in connection with the leak of a draft opinion.”

Schenck told the Times that Roberts did not respond. A court spokeswoman declined to provide the letter or comment on the progress of the leak investigation.

This is not the first time Schenck has publicly revealed what he describes as efforts by Christian conservatives to influence the direction of the court. Schenck in the past has told Politico and Rolling Stone about efforts he undertook on behalf of his nonprofit, Faith and Action, to ingratiate himself with the three justices who at the time were the court’s most conservative — Alito, Justice Clarence Thomas and the late Justice Antonin Scalia.

But the Times report, by Jodi Kantor and Jo Becker, said Schenck had not previously shared allegations about knowing in advance the outcome of the Hobby Lobby case, which held that family-owned businesses did not have to provide certain contraceptives under the Affordable Care Act’s insurance requirements.

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“The evidence for Mr. Schenck’s account of the breach has gaps,” the reporters wrote. “But in months of examining Mr. Schenck’s claims, the Times found 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 provided an email from Wright, who along with her now-deceased husband, Donald, were major contributors to Schenck’s nonprofit. Schenck told the Times that when he learned the Wrights would be the dinner guests of Alito and his wife, Martha-Ann, in 2014, he asked Gayle Wright to learn what she could about the pending Hobby Lobby case.

A day later, Gayle Wright wrote: “Rob, if you want some interesting news please call. No emails,” the Times reported.

According to the Times report, Schenck said Wright told him that the decision would be favorable to Hobby Lobby and that Justice Alito had written the majority opinion. Three weeks later, Alito delivered the court’s opinion.

Wright told The Washington Post she frequently talked with Schenck, then a close friend, about the Hobby Lobby lawsuit. But she 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. “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.”

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Wright said she and her husband were introduced to the Alitos through the Wrights’ work for the Supreme Court Historical Society. The dinner was the first and only time the couples ate together at the Alito’s home, Wright said, recalling that she and her husband were thrilled about the invitation.

She recalled being distraught when she became ill during the meal and had to abruptly depart. She later emailed Schenck, she said, and asked him to call so she could share “interesting news.”

“I was so excited to tell him that Justice Alito had actually gotten in his car to take me home,” Wright said. “We wanted to talk to him and share it with him. … It was a story for us, and I think it would be for most normal people.”

The Wrights were major contributors to the historical society, which Schenck has said is something he encouraged his donors to fund.

In his statement, Alito said that is the only way he knew the couple. “I have no knowledge of any project that they allegedly undertook for ‘Faith and Action,’ ‘Faith and Liberty,’ or any similar group, and I would be shocked and offended if those allegations are true,” his statement said.

A liberal group that has advocated increasing the size of the Supreme Court to offset its new conservative supermajority called on the Senate to look into the report.

“The Senate Judiciary Committee should immediately move to investigate the apparent leak by Justice Alito,” said Brian Fallon, executive director of Demand Justice. “The whistleblower in this report, Rev. Rob Schenck, should be called to testify about both the leak and the years-long lobbying effort he once led to cultivate Alito and other Republican justices.”

Fallon added: “It’s no wonder trust in the Court has hit a record low. Structural reform of the Court, including strict new ethics rules, is needed now more than ever.”

Jennifer Jenkins contributed to this report.

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