Evangelical minister Robert L. Schenck recruited wealthy Christian couples to serve as “stealth missionaries” at the Supreme Court for about two decades, forging friendships with conservative justices to “bolster, encourage and applaud” their views on abortion, same-sex marriage and other culture-war issues, according to a copy of testimony Schenck intends to deliver Thursday to the House Judiciary Committee.
“I hoped that by boosting their morale, we might see stronger opinions,” Schenck wrote in his 19-page testimony, describing the mission of the influence operation that he dubbed “Operation Higher Court.”
Schenck, who in recent years has broken with the religious right over issues including abortion and gun rights, will say he encouraged his recruits to use donations to the Supreme Court Historical Society and other tactics 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. The Washington Post could not immediately verify specific allegations, some of which 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 Americans’ 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 is also scheduled to speak Thursday. He intends to argue that reform is badly needed for rules governing gifts to Supreme Court justices, recusals, spousal conflicts of interest and outside speaking engagements, according to a copy of his prepared testimony.
About Schenck’s efforts, he intends to say 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 about pending cases, 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.)
Even before Schenck went public with his explosive story about Alito, the court was facing declining approval ratings and eroding public confidence. 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, is also scheduled to testify Thursday.
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.
Concluding that his work as an activist might make it difficult for him to get close to the justices, Schenck recruited lower-profile missionaries. “Their task would be 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,” his testimony says. 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.
He encouraged the missionaries to make generous donations so they might become trustees of the society. In his testimony, he recalls introducing justices to dozens of the top donors to the Council for National Policy — a powerful network of conservative activists — at a reception co-hosted by the historical society.
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.
In his testimony Thursday, Schenck intends to recount the Hobby Lobby leak reported by the Times, in which he alleges that Alito or his wife told the Wrights in advance how the court would rule in the landmark decision by Alito that involved contraceptives and religious rights.
Schenck described the alleged leak of the Hobby Lobby decision in a letter he sent to Chief Justice John G. Roberts Jr. 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.
“When I started writing it, foremost on my mind was the possibility of a clerk or other employee unfairly taking the blame for the Dobbs episode and suffering draconian punishment,” Schenck intends to say. “Yet, inequitably, a Justice would face no such consequence for a similar 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.
