Recent events show how imperative it is that Congress enforce a code of conduct for the U.S. Supreme Court, maintains the Freedom From Religion Foundation.
A week ago, the House Judiciary Committee held a hearing involving charges of anti-abortion ethics conflicts at the Supreme Court. The very next day, Justice Brett Kavanaugh demonstrated precisely why ethics reform is overdue on the high court.
Kavanaugh attended a Christmas party last Friday with a number of prominent members of the Religious Right, which was hosted by Matt Schlapp, chair of the American Conservative Union, and whose guests included U.S. Rep. Matt Gaetz and former Trump adviser Stephen Miller. Miller is president of the America First Legal Foundation, which has an interest in cases due to appear before the high court.
This troubling interaction occurred the day after Rev. Robert Schenck, a repentant anti-abortion lobbyist, testified before the House Judicary Committee about Faith and Action’s “Operation Higher Court,” a project he directed for 20 years to influence extremist justices. “We termed the nature of the stealth missionaries’ work ‘the ministry of emboldenment,’” Schenk stated in his 19-page written statement to the committee.
“I believe we pushed the boundaries of Christian ethics and compromised the high court’s promise to administer equal justice,” Schenck testified to the committee. “But I’m also conscious that we were never admonished for the type of work our missionaries did. Quite to the contrary. In one instance Justice Thomas commended me, saying something like ‘Keep up what you’re doing. It’s making a difference.’”
Schenck helped found a Christian ministry in 1994 to hold bible study and prayer sessions for members of Congress and their staff. This became the Faith and Action ministry, which set its sights on “shoring up” the socially conservative views of like-minded justices on the Supreme Court, especially against abortion. He was also integral to National Day of Prayer observances on the steps of the high court, co-sponsorships of the U.S. Capitol Bible Reading Marathon, the March for Life and a Ten Commandments project presenting decalogue plaques to members of Congress and other theocratic activities.
A major exposé in the New York Times last month recounted how Schenck recruited wealthy professionals to court justices as “stealth missionaries.” He arranged for the president of Hobby Lobby to attend a court Christmas party in 2011 so he could talk to Roberts “and other likely sympathetic members of the court” about their plans for a bible museum in Washington. He told the Times that in 2014, a couple he recruited had dined with Justice Samuel Alito, who leaked to them the outcome of the court’s pending Hobby Lobby ruling, saying he would write the opinion and the company would win its challenge to overturn part of the contraceptive mandate of the Affordable Care Act. Alito denies the charge.
In his written testimony, Schenck wrote: “From the time Chief Justice John Roberts arrived in September 2005, I had detected a more relaxed, less guarded atmosphere inside the court. My fellow pro-life advocates and I credited that to the chief’s obvious commitment to his Catholic faith, especially as it was expressed in his family’s parish, The Church of the Little Flower in Bethesda, Maryland, and his wife Jane’s history of involvement with a pro-life crisis pregnancy center. The new tone at the court made it easier for our stealth missionaries to operate.”
His written testimony also reveals that his group took advantage of the Red Mass held the Sunday before each Supreme Court term starts, which most justices attend, followed by a luncheon. “Our missionaries could approach the justices in this intimate, less guarded, spiritual setting,” he wrote. They also inveigled their way into the Supreme Court Historical Society, recruiting about 40 top donors to the Council for National Policy to meet several justices.
In July of this year, Schenck sent a letter to Roberts revealing his information about the Hobby Lobby leak. He testified that it was largely written because he feared a court subordinate would take the blame for the Dobbs leak, yet a justice would suffer no consequence for a breach. He has not received a reply, which is why Schenck eventually agreed to the New York Times interview.
In 2018, Schenk closed Faith and Action. Its Capitol Hill building across from the high court and its programs were taken over by Liberty Counsel, a Christian nationalist outfit that argues high-profile religious freedom cases before the court.
Schenck, who has referred to himself as “a dissenting evangelical,” answered committee questions. After a hostile accusation by a Republican member of Congress, Schenk replied, “There comes a time when politics begins to inform religion in a way that I think is corrupting to both.”
Asked to explain his change of heart on the abortion issue, Schenk testified: “There came a moment in a dusty seminary basement comparing the story of the evangelical church in Nazi Germany, which declared Adolf Hitler to be a gift and miracle sent by God to restore Germany to its greatness. That was an eye-opening and deeply disturbing experience for me. Because I realized how my spiritual family could be utterly politicized in the worst possible way imaginable. … I realized that the ideology of my community, that embraces unfettered Second Amendment rights, became an idol. Ideology quickly became a form of idolatry.”
Schenk testified that at one point he realized he’d never the heard the voice of women in his 30 years of anti-abortion activism: “That … shook the foundations of the ideology that had become idolatry for me. And that brought me to a place of repentance. … And at this time of my life part of my repentance is to tell the truth.”
All U.S. judges except those on the Supreme Court work under a code of conduct. The Supreme Court Ethics, Recusal and Transparency Act, known as SCERT, has passed out of the Judiciary Committee but not been voted on by the House. It would require the Supreme Court to have a code of conduct, disclose gifts, including for travel, force mandatory recusal where there are financial or other major conflicts, disclose family interests and impose other basic ethics requirements.
“We salute Robert Schenck for his integrity in coming forward,” says FFRF Co-President Dan Barker. “And we agree with Judiciary Committee Chair Jerrold Nadler when he says that the Supreme Court can’t police its own ethics. The American people deserve an independent judiciary, which is a bedrock of democracy, and we deserve immediate adoption of SCERT.”