New Allegations of a Leak by Justice Alito Underscore the Need for Supreme Court Reform
The New York Times recently published shocking allegations that Supreme Court Justice Samuel Alito leaked a decision weeks before a ruling was announced publicly in the 2014 case Burwell v. Hobby Lobby on contraception and religious liberty. The exposé also detailed a coordinated effort by abortion opponents to leverage wealthy donors to influence justices and “stiffen the resolve of the court’s conservatives in taking uncompromising stances that could eventually lead to a reversal of Roe.” These allegations, if true, would be a damning indictment on an institution that portrays itself as being beyond politics or influence—even as it shrouds itself in secrecy and exempts its justices from the same ethics restrictions that apply to other judges or government officials.
The U.S. Supreme Court ultimately must rely on the other branches of government and Americans writ large to respect its authority as the nation’s neutral and final arbiter of legal disputes, so it is crucial to get a full accounting, under oath, of what really occurred. Justice Alito and a donor said to have received the leak have both denied it occurred, and The New York Times reported there are “gaps” in the evidence provided by the whistleblower. Yet the exposé’s reporters note, “The Times found a trail of contemporaneous emails and conversations that strongly suggested [the whistleblower] knew the outcome and the author of the Hobby Lobby decision before it was made public.”
Regardless of whether a leak in the Hobby Lobby case ever occurred, the mere perception of impropriety underscores the urgent need for a binding and enforceable code of ethics.
If Chief Justice John Roberts cares about the legitimacy of his court, he must order a robust investigation into the allegations, with full transparency to the public. In fact, his silence on this matter to date has been troubling. The allegations reported by The New York Times come only months after a draft opinion—also written by Justice Alito—was leaked in Dobbs v. Jackson Women’s Health Organization, which ultimately overturned Roe v. Wade and eliminated the constitutional right to an abortion. In that case, Chief Justice Roberts took the highly unusual and public step of ordering the court’s marshal to investigate the leak. In this case, however, the chief justice has not responded to, or publicly launched an investigation into, the formal letter sent from a whistleblower in early June alleging that Justice Alito leaked the earlier Hobby Lobby decision.
Regardless of whether a leak in the Hobby Lobby case ever occurred, the mere perception of impropriety—such as when wealthy donors are able to dine privately with justices in hope of shaping the court’s views—underscores the urgent need for a binding and enforceable code of ethics. These allegations come on the heels of a tumultuous term at the court that saw the newly expanded extreme right-wing majority overturn decades of rights, precedents, and statutes. In its wake, the public has rapidly lost significant faith in the institution, with Americans’ favorable views of the court falling from 70 percent in 2020 to only 48 percent today.
Unfortunately, this is not the first time the actions of some Supreme Court justices have raised eyebrows and suggested the need to address seeming conflicts of interest. The late Justice Antonin Scalia traveled all over the world on the dime of private sponsors and, in fact, died while staying for free at a hunting lodge owned by someone whose company had recently been before the Supreme Court. His stay there, if not comped, would have cost about $700 per night. A number of other justices similarly took privately paid trips, with former Justice Stephen Breyer’s 185 trips coming in second to Justice Scalia’s 258 trips between 2004 and 2014.
More recently, in a different kind of conflict, Justice Clarence Thomas chose not to recuse himself from challenges to the 2020 presidential election, despite his wife Ginni Thomas’ involvement in strategy discussions around the election. Even more troubling is that Justice Thomas was the only dissent in a case to grant the January 6 House select committee access to former President Donald Trump’s White House records—when text messages between Ginni Thomas and White House Chief of Staff Mark Meadows, as well as her presence at the January 6th “Stop the Steal” rally, suggest she was directly engaged in activities to fraudulently overturn the election.
The rule of law is foundational to our democracy, and central to it is the perception that our judges impartially interpret the law without susceptibility to outside influence.
Fortunately, Sen. Dick Durbin (D-IL), who chairs the Senate Judiciary Committee, has announced that the committee will be reviewing the allegations around the Hobby Lobby leak. This is an important step. As elected representatives with direct accountability to the people, it is crucial for Congress to fully investigate the matter. Yet Congress cannot stop there, as the mere perception of a court in the pocket of wealthy donors begs for action.
The Center for American Progress has previously written about the need to establish enforceable ethics restrictions and to improve transparency for the Supreme Court, among other crucial reforms. All federal judges other than Supreme Court justices are subject to a code of conduct created in 1973. These rules could easily be strengthened and applied to the Supreme Court. The refusal of the court to voluntarily do so suggests that Congress must step in to pass a law imposing a binding, enforceable code of ethics. Members of both parties have spoken in the past on this issue, so there is simply no reason it should not be passed with overwhelming bipartisan support.
In fact, it does not even need to wait: Congress could pass a code of ethics on the court in an end-of-year spending bill that would need to be passed in the next month. At a minimum, Congress could condition some funding for the Supreme Court on its certification that it has applied the same rules that apply to other judges to itself and created a suitable enforcement mechanism.
Read CAP’s recommendations
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It is past time for us to have a bigger conversation about reforming the court. The rule of law is foundational to our democracy, and central to it is the perception that our judges impartially interpret the law without susceptibility to outside influence. The highest court of the land isn’t so high that it should be above the law or beyond the reach of our democracy.
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Senior Vice President, Structural Reform and Governance; Senior Fellow