Questions Explode Over Alito, Leaks, and Christian Nationalists: Pack the Court

Could Alito ever be impeached?

New questions swirl around the Justice whose opinions seem “leaky,” especially conservative religious-based decisions.

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A COURT ALREADY IN CRISIS FACES NEW QUESTIONS OVER LEAKS AND FAVORED PARTIES

Justice Alito has denied every single allegation below. They remain allegations, not facts, though…

So much news broke this week that it would have been easy to miss Friday night’s New York Times bombshell describing the 2014 alleged leak of the Hobby Lobby case. Unlike the leak in Dobbs, the Hobby Lobby decision circulated only among a small group of “missionaries,” (as they call themselves), people who share the same beliefs and values, the people who believe that Christianity belongs within and is an integral part of the United States government, also known as Christian-Nationalists. Hobby Lobby was one of the first cases to adopt the “your secular liberty infringes on my right to practice my [Christian] religion” doctrine, as Hobby Lobby, a family-owned corporation, won the right to deny birth control to employees as part of the ACA (Obamacare) plan.

Justice Samuel Alito authored the 5-4 Hobby Lobby decision. Alito also authored the 5-4 Dobbs decision. One might be quick to point out that we only learned about the Hobby Lobby leak on Saturday (And not in 2014) because it was floated among such small group weeks ahead of time but eventually included the plaintiffs - Hobby Lobby, days before the opinion was issued. Dobbs, however, was leaked to Politico, an entirely different pattern. This is certainly true, except that doesn’t mean that the plan for Dobbs was any different than Hobby Lobby. Without getting into the weeds and infringing on the Times, the following paragraph amply describes the framework:

Mr. Schenck, who used to lead an evangelical nonprofit in Washington, said he learned about the Hobby Lobby opinion because he had worked for years to exploit the court’s permeability. He gained access through faith, through favors traded with gatekeepers and through wealthy donors to his organization, abortion opponents whom he called “stealth missionaries.”

These groups would then quietly pass the ruling (if not the actual opinion) around to those who might benefit from early awareness, those who could lay the groundwork and have messaging ready. A small, tight group knew what was coming:

But The Times interviewed four people who said he told them years ago about the breach, and emails from June 2014 show him suggesting he had confidential information and directing his staff to prepare for victory. In another email, sent in 2017, he described the disclosure as “one of the most difficult secrets I’ve ever kept in my life.”

It is possible, though we cannot know, that the alleged plan was the same in Dobbs, leak the case to a small group of missionaries, Christian Nationalists, to lay their groundwork. Only Dobbs couldn’t be so easily controlled, and the entirety of the opinion got out. It is possible that some on the Right believed that a case of such magnitude needed time to percolate so as to dampen the ultimate impact.

Whatever the motivation, we have two cases (of which we know) that drastically shifted the landscape in favor of Christian Nationalists. The two cases - at least two - were allegedly leaked (Dobbs was definitely leaked). Both cases were written by Alito. Gorsuch, Kavanaugh, and Coney-Barrett, three of the other Justices who signed on to Dobbs, were not on the Court in 2014. Last, we know that the SCOTUS has had the better part of a year to determine the source of the leak in Dobbs, and we have heard nothing. Perhaps tellingly, we have not heard demands for closure from the political Right, the Ted Cruz types, who want the Court to retain as much legitimacy as possible.

It would seem rather easy to track down the leak. The total number of people who had complete copies (of the type leaked) is a set, limited number. It is possible to investigate each person with access. Of course, the only trouble might be if the source was a justice himself or herself. Then what?

There is no mechanism to deal with such a situation beyond impeachment, which isn’t going to happen in this polarized climate.

Maybe in an earlier, less political time, if a justice was found to be the source, an announcement would be made, and that justice would step down under threat of impeachment. We need not even review that possible outcome during this period.

That doesn’t mean punishment couldn’t be rendered down within the Court itself. The Court has a long-held tradition it uses to appoint the Justice who writes the controlling opinion. If the Chief is in the majority, the Chief appoints the author. If the Chief is in the minority, the most senior Justice in the majority appoints the author. The most senior in the minority appoints who writes the dissent. In Dobbs, Justice Thomas chose Justice Alito to write the opinion. It is possible if it’s established - within the court - that Alito is the leaker, that he’s never picked to author an opinion again… Not likely. It is almost embarrassing even to throw out the possibility. But it would serve as punishment.

Against the Dobbs backdrop and Thomas’s steadfast refusal to recuse himself from obvious conflicts, this revelation is the last thing the Court needed because the Court may be about to issue its most political ruling since Marbury v. Madison, the 1803 case that established that the SCOTUS would be the ultimate authority on whether legislation was Constitutional.

This fall, the Court will decide Moore v. Harper, the case that will determine whether, under the 12th Amendment, any court has the right to review a state legislature’s determination as to which presidential electors to send to Congress. In other words, in light of the 12th Amendment, ratified in 1804, the Courts would say what the law is with the exception of sending electors to the Electoral College.

It is not hyperbole to say that the case could change the way we elect presidents from this point forward. As you might guess, if the independent state legislature is held Constitutional, it will not be more democratic or Democratic.

This Substack Series has already reviewed the legal implications of the Independent Legislature doctrine and the threat it poses to Democracy. It can be found here. A one-sentence review: In 2020, had the doctrine been in place, the legislatures of Arizona, Georgia, Pennsylvania, any of them, could have held hearings, found the election results to be wrong, or “rigged,” or questionable enough to ignore state certification, order Trump electors to Washington and not a single court in this country could review the decision. None.

It is against this backdrop that the Court looks more political than ever. We now have credible allegations that two Christian Nationalist opinions written by Alito were leaked for nefarious purposes. We have a court with two - perhaps three SCOTUS seats that were stolen (Kennedy’s retirement was suspicious). We have at least four justices (Alito included) who committed perjury during their Senate confirmation, all of them proclaiming Roe to be settled law that they would uphold, only to overturn it at the first opportunity.

And now, a court that may be about to set Republican legislatures loose, legislatures gerrymandered so embarrassingly that Wisconsin - a purplish state, has a veto-proof majority in the state legislature is adrift under no apparent control or check. It is but one example. Such a ruling would ensure Republican presidential victories with even greater and greater general election majorities. From the same New York Times article, replace “Roe” with “Moore,” and give the conservatives a super-majority on the SCOTUS, one that favors that Christian Nationalist view of democracy:

Justices are given lifetime appointments to promote independence and buffer them from lobbying and politicking. But Mr. Schenck wanted the conservatives on the court to hear from people who would hail them as heroes if they seized the opportunity to strike down Roe one day. The goal, he said in an interview, was to “embolden the justices” to lay the legal groundwork for an eventual reversal by delivering “unapologetically conservative dissents.”

CAN ANYTHING BE DONE? PACK IT?

And so what to do with a Court whose legitimacy is seen as low as it has been, at least since the 1930s… when FDR threatened to pack a court that continued to vote down his New Deal legislation. Would Biden - looking at the possible destruction of democracy at the presidential level - be forced to consider packing the court again?

It will HAVE to be considered. Look at the abuses allowed by two seats that were clearly stolen, one from Obama and one from Biden. Look at Thomas’s fearless refusal to recuse himself from clearly conflicted cases. Look at a court that went beyond the question in Dobbs, which only questioned the 15-week heartbeat law. Look at a Court that seemingly refuses to seriously investigate the most audacious leak in history. And, if, in Moore, the Court fundamentally alters democracy, the result begs some sort of remedy.

Packing the Court would require ridding the Senate of the filibuster - SOMETHING DRASTICALLY NEEDED ANYWAY - and appointing justices willing to vote that packing the court is constitutional, along with a whole host of other maneuvers. History has one lesson, and it is found in West Coast Hotel Co. v. Parrish, aka “The Case in Time that Saved Nine,” when Justice Owen Roberts, faced with sharing the bench with two more justices, switched his beliefs on the Commerce Clause and ruled on FDR’s side, obviating the need to pack the court.

The Justices do not want their power diluted. But they damn well need to be convinced that Biden is serious.

CONCLUSION

VERY serious talk should start now about the implications of allegations of leaking opinions to parties that benefit, two stolen seats, Thomas’s refusal to recuse, and - especially with Moore coming down the pike, letting this court know Biden and the Democrats are ready to do it. Democrats need to emphasize that from 1992 to 2020, more people have voted for the Democrat for president in every single election - with one exception - in 2004 than the Republican candidate. And yet the Republicans have “enjoyed” the White House only one term short of half that period. It allowed Republicans to appoint five justices since that time (to go on top of Thomas), over the three appointed by Democrats.

Biden and Democrats shouldn’t consider “packing” the Court. Bad branding. The Democrats should “balance” the Court in accordance with the majority vote since 1992. Yes, Alito denies the allegations, and they are not proven. Eh. The Christian Nationalist-Federalist Society's “feel” for the Court is overwhelming.

It leaves the country circling in a drain created by an electoral college and senate that favors small, white, conservative states and a shameless Republican Senate majority leader. This time, democracy itself is on the line. State legislatures wouldn’t even need to hold presidential elections. It’s happening at the same time an autocratic movement is forming on the right, one that wants to push more religious “rights” into the Constitution. Not likely a coincidence.

Roberts cannot control the Court. It lacks legitimacy. With Moore, it risks having states ignore its rulings. It is time for balance. One gets the sense that Alito’s (alleged) club is far bigger in scope than the Times could establish as factual allegations, perhaps not with respect to leaks, but with respect to pressure put upon the most conservative justices… It is time to do something.

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