Supreme Court breach was not the first, says former anti-abortion leader

As the Supreme Court investigates the extraordinary leak this spring of a draft opinion of the decision overturning Roe v. Wade, a former anti-abortion leader has come forward claiming that another breach occurred in a 2014 landmark case involving contraception and religious rights.

In a letter to Chief Justice John Roberts and in interviews with the New York Times, the Rev. Rob Schenck said he was told the outcome of the 2014 case weeks before it was announced. He used that information to prepare a public relations push, records show, and he said that at the last minute he tipped off the president of Hobby Lobby, the craft store chain owned by Christian evangelicals that was the winning party in the case.

Both court decisions were triumphs for conservatives and the religious right. Both majority opinions were written by Justice Samuel Alito. But the leak of the draft opinion overturning the constitutional right to abortion was disclosed in the news media by Politico, setting off a national uproar. With Hobby Lobby, according to Schenck, the outcome was shared with only a handful of advocates.

Schenck's allegation creates an unusual, contentious situation: a minister who spent years at the center of the anti-abortion movement, now turned whistleblower; a denial by a sitting justice; and an institution that shows little outward sign of getting to the bottom of the recent leak of the abortion ruling or of following up on Schenck's allegation.

The evidence for Schenck's account of the breach has gaps. But in months of examining 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, 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."

The minister's account comes at a time of rising concerns about the court's legitimacy. A majority of Americans are losing confidence in the institution, polls show, and its approval ratings are at a historic low. Critics charge that the court has become increasingly politicized, especially as a new conservative supermajority holds sway.

In early June 2014, an Ohio couple who were Schenck's star donors shared a meal with Alito and his wife, Martha-Ann. A day later, Gayle Wright, one of the pair, contacted Schenck, according to an email reviewed by the Times. "Rob, if you want some interesting news please call. No emails," she wrote.

Schenck said Wright told him that the decision would be favorable to Hobby Lobby and that Alito had written the majority opinion. Three weeks later, that's exactly what happened. The court ruled, in a 5-4 vote, that requiring family-owned corporations to pay for insurance covering contraception violated their religious freedoms. The decision would have major implications for birth control access, President Barack Obama's new health care law and corporations' ability to claim religious rights.

Alito, in a statement issued through the court's spokesperson, denied disclosing the decision.

He said that he and his wife shared a "casual and purely social relationship" with the Wrights and did not dispute that the two couples ate together June 3, 2014. But the justice said that 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."

Wright, in a phone interview, denied obtaining or passing along any such information. A representative for Hobby Lobby would not comment. Beyond sharing Alito's statement, a spokesperson for the court declined to answer questions about Schenck's account or its investigation.

The court deliberates about the fundamental rights of Americans — such as access to contraception and abortion — behind closed doors. Schenck's campaign offers insights into the court's boundaries and culture, and into efforts to draw the justices closer to communities that are devoted to particular outcomes in critical cases.

In interviews and thousands of emails and other records he shared with the Times, Schenck provided details of the effort he called the "Ministry of Emboldenment."

Schenck recruited wealthy donors such as Wright and her husband, Donald, encouraging them to invite some of the justices to meals, to their vacation homes or to private clubs. He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who could help give him access, records show.

All the while, he leveraged his connections to raise money for his nonprofit, Faith and Action. Schenck said he pursued the Hobby Lobby information to cultivate the business's president, Steve Green, as a donor.

It is unclear if Schenck's efforts had any effect on legal decisions, given that only Justices Alito, Antonin Scalia and Clarence Thomas proved amenable to the outreach, records show, and they were already inclined to overturn Roe v. Wade. That decision was only reversed this year after the addition of new conservative justices altered the court's ideological makeup. But Schenck said his aim was not to change minds but rather to stiffen the resolve of the court's conservatives in taking uncompromising stances that could eventually lead to a reversal of Roe.

"What we did," he said, "was wrong."

'Pushing the boundaries'

When the Hobby Lobby case was argued before the Supreme Court in March 2014, Gayle Wright and her husband watched from a select spot: seats in the courtroom reserved for guests of Scalia and Alito.

"We were invited to use seats from Nino and Sam," she had written to Schenck days earlier, using nicknames for the justices. "Wow!"

In the interview, Wright said she used such seats "all the time" because "Nino and my husband were very good friends." She was eager to hear the Hobby Lobby arguments, she added, because she had an interest in "all cases related to biblical issues."

He had long been an ends-justify-the-means anti-abortion provocateur. During the 1992 Democratic convention, he plotted a stunt to accost future President Bill Clinton with an aborted fetus in a container. He was repeatedly jailed for blocking access to abortion clinics. He helped pay Norma McCorvey, the "Jane Roe" of the 1973 ruling establishing abortion rights, for speaking appearances years later opposing the decision. (She later said she had been paid to lie.)

But no matter how much attention those tactics yielded, Roe v. Wade, one of the most consequential decisions in the past half-century, stood in the way of efforts to end the right to an abortion.

Historically, the court does not like to get too far out ahead of public opinion, and justices do not lightly overturn long-standing precedents. So in 2000, Schenck launched "Operation Higher Court"— an attempt to reach the justices directly.

Justices are given lifetime appointments to promote independence and buffer them from lobbying and politicking. But 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."

He wanted to gain access himself — but because he was a controversial figure, he also recruited couples who were less likely to draw notice. His leading players were Wright and her husband, a real estate developer and philanthropist from Centerville, Ohio. They got involved in his work "to have a major impact on the attitudes and actions of those in a position to shape and interpret our laws," they wrote in a 2001 newsletter.

Schenck has recounted some aspects of his initiative to Politico and Rolling Stone. But he has spoken exclusively with the Times about the alleged Hobby Lobby breach and provided far more detail and documentation about his efforts — including correspondence with donors, anti-abortion activists, court officials and justices.

To remain as close to the court as possible, Schenck purchased a building across the street and began working the court's employees.

One of his targets was Perry Thompson, an administrator. Schenck befriended him by preaching at a church where Thompson served as pastor in his spare time. He leaned on Thompson to get coveted seats for oral arguments and decision days. In characteristically hyperbolic fashion, Schenck described him in a fundraising appeal as "God's 'secret agent'" at the court. Thompson did not respond to requests for comment.

"I exploited my friendships," Schenck said. "The bad is on me."

He also encouraged his donors to become patrons of the court's Historical Society. Four of them, including the Wrights, became trustees, giving at least an estimated $125,000, records show.

Pride responded, saying he would escort Green into the party. He added: "We should consult about what you might like me to promote on your behalf to Mr. Green. Do you have a particular project or the like that you'd like me to talk up? Or should I just extol your many virtues to him?"

A few months later, the Hobby Lobby owners began discussions about joining efforts to overturn the Affordable Care Act's contraception mandate.

Pride, now retired, said he was happy to help Schenck "do some fundraising with the Greens."

"Anytime a member of the society — and Rob was a member, and also a close friend — wanted help, I always did what I could," Pride said in an interview.

Schenck's overtures met with a mixed response. Roberts and the court's longtime swing voter, Justice Anthony Kennedy, were "polite but standoffish," Schenck said. (Once, after he included a photo of himself with the chief justice in fundraising material, he received a letter of rebuke.)

Schenck also asked Scalia to meet privately with the Rev. Frank Pavone, an incendiary anti-abortion activist who ran Priests for Life, a nonprofit that has been involved in issues before the court, as have Schenck and Faith and Action.

"As I am sure you will appreciate, my position does not permit me to assist in the work of Fr. Pavone's organization," Scalia wrote in a letter, adding, "I will be happy to meet him, however, at a time he can arrange with my secretary."

Pavone did not respond to requests for comment.

Supreme Court justices mostly police themselves, which Schenck said he exploited. While they are subject to the same law on recusals as other federal judges, they are not bound by the ethics code that applies to the rest. (Roberts has said they "consult" it.) Under court norms, they can socialize with lawyers or even parties with interests before them, as long as they do not discuss pending cases.

"I saw us as pushing the boundaries of appropriateness," Schenck said.

Amanda Frost, a law professor at the University of Virginia, said in an interview that because the court's reputation was essential to its institutional legitimacy, justices must take care to "appear to be playing a different role than politicians." Meeting with a well-known anti-abortion activist could create the appearance that the "person is getting a private opportunity to lobby the justice."

Though the court does not require justices to disclose meetings with interested parties, there have been periodic controversies, such as when Scalia hunted with Vice President Dick Cheney in 2004 while a case involving his office was pending.

Worried about disclosures, Schenck gave his "stealth missionaries" close instruction. The justices were more likely to let their guard down at the Historical Society's annual dinners, he advised recruits in a 2008 "orientation briefing," because they assumed attendees had been "properly vetted."

"See a justice — boldly approach," he told the couples, according to a briefing document reviewed by the Times. If given the opportunity, bear witness to "biblical truth" but don't push it, he said. "Your presence alone telegraphs a very important signal to the justices: Christians are concerned about the court and the issues that come before it."

Kaitlynn Rivera, who worked for Faith and Action from 2013 to 2015, confirmed many details Schenck provided, including about the donor couples and his relationships at the court. To supporters, the minister boasted about his group's connections, but he regularly warned them to keep quiet because he "knew the public at large would be upset by that kind of access," she said in an interview.

But no donors drew closer to the justices than the Wrights. Donald Wright often hunted with Scalia, according to the businessman's obituary, and the couple socialized with the Alitos, Scalias and Thomases. They hosted the Alitos at their retreat near Jackson Hole, Wyoming, and the Alitos had the Wrights for dinner at their home in Alexandria, Virginia.

Records show that Gayle Wright, who said in the interview that her interest in the court stemmed solely from her involvement in the Historical Society, regularly reported her contacts with the justices to Schenck.

"Don and I have been invited to a private party in Virginia to celebrate Nino's 80th," she wrote to him in a January 2016 email, referring to Scalia.

"Lunch with CT on Monday, Sam on Wednesday, dinner at court on Monday, Dinner with Maureen on Wednesday," she wrote in another email that year. Schenck understood "CT" and "Sam" to be Clarence Thomas and Alito. (She referred to them by their first names in another email.) Scalia's widow is named Maureen.

Alito appeared to know Wright's views well enough to recommend she attend a lecture at the court by Kelly Shackelford, president of First Liberty Institute, which frequently litigates religious liberty cases before the justices. "Sam told us that Kelly is someone we should know," she wrote to Schenck in 2013.

In the statement from the court, Alito 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."

He added, "I have no knowledge of any project that they allegedly undertook for 'Faith and Action.'" He concluded, "I would be shocked and offended if those allegations are true."

'This will be it'

In June 2014, when Wright told Schenck that she and her husband would be dining privately with the Alitos, she and the minister agreed she would try to learn to learn the outcome of the Hobby Lobby case, he said. "She knew I had an interest in knowing," Schenck wrote in his letter to the chief justice.

On June 4, the day after the meal, Wright sent Schenck her cryptic email saying she had news.

"Being a friend or having a friendly relationship with a justice, you know that they don't ever tell you about cases. They aren't allowed to," Wright said. "Nor would I ask. There has never been a time in all my years that a justice or a justice's spouse told me anything about a decision."

The minister said that after he learned the outcome from Wright in a phone call, he froze. He knew that pending decisions were not supposed to be disclosed and that sharing the information could hurt everyone involved if it got out.

His wife, Cheryl Schenck, said he was agonized. "The reason I remember is all the stressful machinations on, 'What should I do with this information?'" Cheryl Schenck, a therapist, said in an interview.

Ultimately, Rob Schenck could not resist using it, he said. Emails he wrote over the following weeks reflect the advance knowledge he said he had of the Hobby Lobby decision. While the outcome was not surprising — the justices' questions during oral arguments had hinted at it — Schenck appeared to know that Alito would author the opinion, even though many court watchers expected Roberts to write it.

On June 12, as Schenck's team prepared dueling statements for the news media envisioning both a win and a loss, he privately expressed confidence about the ruling to his staff and drafted only a victory message for donors. "I have a Plan B for a different outcome, but from all the information I have, I think this will be it," he wrote. He included a detailed plan to celebrate their triumph on the steps of the court, where they would drop to their knees in a "prayer of thanksgiving." When a publicist pointed out there was no message for donors in the event of a loss, he did not email a reply.

As the announcement neared, he grew bolder. On June 29, the day before the ruling, he emailed a staff member that "if it's positive (confidential: I have good reason to believe it will be)," she should publicly laud Alito as a "reliable defender" of religious freedom. No other justice was mentioned.

That same day, he said, he phoned Green. "As I mentioned, we'll need to keep it strictly 'in the family," Schenck emailed him later that night. "We're watching and praying!"

(Schenck later wrote an email to supporters that omitted any mention of his prior knowledge and instead focused on how the two men had prayed together during their call.)

Green, through his company, declined to comment. Reached by phone, Barbara Green, his mother, said she learned about the decision when it was announced. "We had no idea which way it was going to go," she said.

The minister said he told almost no one else at the time, beyond his wife, brother and sister. But three years later, he confided the details to a business associate, who corroborated his story in an interview. That same year, he recounted the episode to a potential ghostwriter for his memoir in an email, calling the ruling "a decision I already knew was a done deal weeks before it was announced from the bench."

The ruling this year thrilled anti-abortion supporters, though it has proved deeply unpopular among the majority of Americans. After the draft was leaked, Schenck said, he felt compelled to come forward about his attempts to influence the court.

"You can position yourself in a special category with regard to the justices," he said. "You can gain access, have conversations, share prayer."

Even when his group was most active at the court, he said, "I would look up at that phrase that's chiseled into the building itself, 'Equal Justice Under Law,'" he recalled. "I would think, 'Not really.'"