The Daily - A Secret Campaign to Influence the Supreme Court

Episode Date: November 29, 2022

For the past few months, Jodi Kantor and Jo Becker, investigative reporters for The New York Times, have looked into a secretive, yearslong effort by an anti-abortion activist to influence the justices of the Supreme Court.This is the story of the Rev. Rob Schenck, the man who led that effort.Guest: Jodi Kantor, an investigative reporter for The New York Times. Background reading: Years before the leaked draft opinion overturning Roe v. Wade, a landmark contraception ruling was disclosed, according to Mr. Schenck.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

So, a favorite Bible verse of mine in those days came from the words of Jesus Christ himself, who said to his followers, You must be as wise as serpents and harmless as doves. and I took that quite literally, and I would say to our team members, when you're working in the environment that we are in, sometimes we not only have to be wise as serpents, we have to be downright snaky. And it was a laugh line, but the truth was being said in jest. We had to be very clever about what we were doing. From The New York Times, I'm Michael Barbaro.

This is The Daily. For the past few months, my colleagues Jodi Kantor and Joe Becker have investigated a secretive, years-long effort by an anti-abortion activist to influence the justices of the United States Supreme Court. Today. Jody tells the story of the man who led that effort and who claims that long before the leak of the ruling ending Roe v. Wade, another historic ruling was disclosed early to him. It's Tuesday, November 29th.

Jody, tell us about Rob Schenck. So Rob Schenck is a 64-year-old evangelical minister. Would you like us to call you Reverend Schenck for the purposes of this conversation? Well, that would seem to be an easy question to answer, but the reason it's not is because my identity during all those years was Reverend Schenck. Picture somebody whose demeanor is kind of grandfatherly, but And that drove my involvement in the pro-life movement. I saw it as the equivalent to the civil rights movement or to abolitionism in the 17th, 18th, 19th centuries. So I felt I was doing the right and moral thing and something that frankly was required of me by God. He liked to break rules and he was known for these outsized public stunts that got a lot of attention.

He did a lot of protesting. Down on your knees! Down on your knees! Anti-abortionists charged police barricades in front of a suburban abortion clinic. I was arrested numerous times. I was held in contempt of court. I was tried in the federal courts. I am here to make a statement about the integrity and the value of every human life. Then came 1992. The abortion controversy is heating up again this election year in the courts.

I was at the Democratic National Convention in New York outside organizing protests. And in his most famous stunt, he actually crafted this incident at the 1992 Democratic Convention. Bill Clinton was the presumptive candidate for president. And a group of us activists, we checked into the headquarters hotel for the Clinton party and designed a plan to display fetal remains that we had retrieved from a physician. As he left to jog this morning, Clinton was confronted by a man from Operation Rescue, posing as an autograph seeker. And one of our members stood outside the hotel. He tried to

hand Clinton what appeared to be a four-month-old fetus. Displayed this fetus to him and asked him what he would do about the babies. Clinton recoiled but continued to greet passers-by anyway on his morning in the park. So those were the kinds of tactics he used. But as the years went on, he started to question how effective all those public stunts could be in actually changing the status quo. And so where does that questioning lead him? It leads him to Washington. He's kind of looking at the big landscape, and he's looking at his long-term quest, which is to overturn the right to abortion. And he's saying to himself, you know, these lawmakers come and go, but judges were in it for the long haul. And remember here that the ultimate obstacle in his path is Roe v. Wade.

And they're the ones who really interpret the law. And so he begins to turn his eyes to the Supreme Court. And what does that look like? Well, for him, it's complicated and tantalizing. Because on the one hand, judges and especially Supreme Court justices, they're supposed to have a kind of separateness, right? We think of them as above it all. They don't get lobbied in the way that members of Congress do. And they just don't have the same kind of contact with the public that the other branches of government do. But Rob Schenck is looking

at them and saying, maybe there's a way I can actually connect here. I'm a minister. And I had the experience more than once of sitting with a judge, not on the federal level, but on the state level, in private, confidential prayer and counsel. And I know that while judges sit high on their dais, robed like Greek gods, they are human beings. They have a conscience. They have a personality. They have a conscience. They have a personality. They often experience guilt and moral questioning like any of us do.

Maybe there's a way I can reach them and form some sort of bond. Well, how exactly does he hope to do that, to sway the court in this period? Which justices does he hope to bond with and therefore to influence? Well, that's what's so interesting, right? Because, listen, he would have loved to try to change the minds of the liberal justices, but that was not going to happen. It was not a possibility. So instead, he focused on the conservatives and kind of in particular on their psychology. You know, this was around the year 2000. It was a

more centrist Supreme Court than the one we see today. And Roe v. Wade was very much the established law of the land. And people were telling him that the conservatives felt a little beleaguered on the court. They felt a little outnumbered. You know, they were constantly under assault for their conservative opinions. That sort of constant criticism, especially in, you know, what was then called the mainstream media, the liberal mainstream media. And, you know, the way it was explained to me is that sometimes it's discouraging for them to render bold opinions. You know, the outlier for that was Justice Scalia. He always seemed unapologetic about his strong conservative opinions, regardless of what kind of criticism

came his way, he almost seemed to relish in it. But the others, I was told, needed buttressing. They needed support. And the idea he had was that he could stiffen their spines. What he and other anti-abortion activists did not want was a kind of series of compromise decisions on abortions. He wanted to find a way to let the conservative justices know that he and others had their backs. Interesting. So get inside with the goal of making these judges feel that plenty of people were ready to applaud them if they would take a tough line against abortion. So the presence of my team at the court could be a ministry of emboldenment, of emboldening the justices to give them the kind of moral

support they needed to render unapologetically conservative decisions that were, you know, less maybe polite than we had seen, less compromising. And that's what we hoped to accomplish. So what does Rob Shank actually do to get inside the court? Well, he's starting this nonprofit called Faith in Action, which is going to be the new entity through which he's going to carry out this work. And he locates it right across the street from the Supreme Court. There was a Victorian-style row house just opposite what's called the East Facade of the

Supreme Court. And I knew that proximity counts. You have to be close enough to take advantage of serendipity, to be familiar like an old neighbor is. And this symbolizes his purpose. He wants the greatest proximity he can have to the court. He wants to be a constant presence for the justices. I took an office on the third floor of that building, and I literally sat there and gazed out and prayed for the justices almost every morning, five days a week. And I would laugh with my staff in those days and tell them that in the morning hours I would send prayer missiles right through those windows.

So he's starting to try to break into the world of the Supreme Court, but he realizes that there's a limit to what he himself can do. Because remember, he's really controversial. People know his name and they associate it, for example, with this fetus stunt. Right. So he needs proxies. He needs people who are lower profile than he is, who can draw close to the justices, perhaps even without the justices necessarily understanding what they're trying to do. There were some people who were more than donors. They were

fully engaged with us in our work. So he starts to deploy donors from his own organization, wealthy couples, and he positions them to become friendly with the justices. What we would attempt to do is match couples, our couples, to justice couples. So kind of feel out personality types, interests, age, station in life, and so forth, and try our best to be matchmakers. Try to pair up couples where we thought there was a good prospect for a meaningful friendship to develop. His name for them is Stealth Missionaries, and he's trying to insert them into the quiet social life around the Supreme Court, these parties, speeches, dinners. And he focuses in particular on this one organization, the Supreme Court Historical Society. At their events, often all nine justices would enthusiastically participate. And it's supposed to be this kind of anodyne organization, like kind of a fan club for the Supreme Court.

But you can become a patron and you can join it. for the Supreme Court. But you can become a patron and you can join it. And some of our people became very involved with the society and were even appointed or elected to important roles within the society. And that's what his donors do. They went to events, and Shank actually gave them very specific instructions on how to mingle with the justices. And what was that training like? If Joe and I were a couple, if we were donors, and if you were giving us instructions right here and right now on how to befriend and influence one of these justices, what would you tell us? one of these justices, what would you tell us?

Well, first, of course, our couples needed to know the peculiar rhythms and rules of life inside the Supreme Court. It has its own traditions, its own mores, its own codes, behavioral codes, even. So, for example, in the first instance, when you meet a justice, it's best to err on the side of the highest level of courtesy and respect. So it's Madam Justice or it's Mr. Justice, not Judge or Justice Thomas. Say, it's a pleasure to meet you, Mr. Justice. And now they know you understand the protocols. As my colleague Joe Becker and I have been reporting out this story, one of the fascinating documents we came across is this orientation briefing from 2008 for these donors who are going to these events and here let me find some language for you because i i want you to hear exactly what this says he says anyone with you is introduced to the justice not the other way around

do not id me that's Shank, or Faith in Action. You're here because you value the society's programs. So I wonder if you can give us an example of what that looks like in practice, once these trained couples are deployed to actually do this work of cozying up to the justices. Well, the most successful example is a couple that actually ends up forming relationships with several Supreme Court justices and their wives. They got it. And it was even more than that. You know, there are professional psychologists, and there are some very good amateur ones. And this particular couple really

had an innate capacity for understanding human behavior, what bothered those justice couples they interacted with, what their needs were, and they responded to those needs. And I can tell from the way that you're talking that you're shy about naming this couple because they were your donors. And I can tell that you feel a little protective of them, but we've done our research and we think we know who they are. We think that this couple is Donald and Gail Wright of Ohio. Will you just tell me if we have that wrong? You do not have that wrong.

And Jodi, who is this couple? Tell me about them. So Donald Wright is a real estate developer. He and his wife Gail are philanthropists. They're from Centerville, Ohio. And we actually have this item that they put in Schenck's organization's newsletter in 2001, in which they're kind of explaining what they're trying to do in their own words. And what they say is that they got involved, quote,

to have a major impact on the attitudes and actions of those in a position to shape and interpret our laws. And exactly how do the rights do that, Jodi? Well, the Wrights build these kind of social relationships with the justices. They're having meals together. For example, we have this email of Gail Wright's in which she's coming to Washington for a visit, and she's sort of rattling off an appointment

with a different justice or a justice's wife practically every day of the week. She's talking about a meal with CT, who's pretty clearly Clarence Thomas, another meal with Sam, which has a reference to Justice Alito, a meal with Maureen. Maureen is the name of Justice Scalia's widow. And in fact, we know that the Alitos even went to stay with the rights in Jackson Hole, Wyoming. It feels worth pausing to reflect on just how far this project has gotten

when you have a couple working closely with Rob Shank, getting this close to these justices on the court, not just having dinner with them, but having them over to their home for vacation stays. I mean, that's a very significant level of intimacy and access. It's really striking, Michael, especially when you review these emails that Joe Becker and I got

between Gail Wright and Rob Shank. It's clear that she's having these sort of repeated encounters with the justices, and she's reporting back to him. Now, the question is, is Shank changing any of these justices' minds on abortion? Is he impacting the legal landscape? There's no evidence for that. This concept of emboldenment is very hard to measure. Right. In part because these justices are already opposed to abortion.

But Shank said that in the end, he did get something really tangible from these relationships. We'll be right back. So, Jodi, what is this tangible thing that Rob Shank gets from these relationships? Okay, so this is Rob Shank's account, and not everybody agrees with it. But the story I'm about to tell you revolves around the 2014 Supreme Court case known as Hobby Lobby.

So Hobby Lobby is a chain of craft stores. It's a big company, but it's a family-owned business. It's owned by this family named the Greens. And after President Obama passes his health care law, they sue. Because what they're saying is that they shouldn't be forced to pay for some forms of contraception that violate their religious beliefs. So the case becomes a huge deal because it's about three things. It's a reproductive rights case about contraception. It's about whether corporations have religious rights.

And it's a challenge to the then president's health care law. If I remember right, oral argument was in March. We knew that being a very controversial decision, it likely would not be announced until June. And Schenck is very, very attuned to this case, not only because the subject matter, which is obviously his focus, but because he actually knew the Greens. The older generation of Greens,

the parents who owned the company, were his donors. And he was trying to further cultivate their son, Steve. So I just waited patiently until I received a call in June from Gail Wright. So what Schenck says is that in early June, he and Gail Wright have a conversation because the Wrights and the Alitos are about to have one of their meals together. And what he says is that he and Gail Wright agree that at this meal, she may be able to learn something about the status of the Hobby Lobby case. about the status of the Hobby Lobby case. And then on June 4th, which is the day after the meal... I received an email from her.

Gail Wright sends Rob Shank an email that says, quote, Rob... If you'd like some news, give me a call. If you want some interesting news, please call. give me a call. If you want some interesting news, please call. Which was our code for this is very sensitive and confidential. And so Shank says he calls her and that she conveys the outcome of a Hobby Lobby case.

She tells him that that company is going to win. And he says she tells him that the decision is being authored by Justice Alito. So during the course of this meal that Gail Wright and her husband share with the Alitos, this couple who have been cultivating a relationship with Justice Alito and his wife, secret Supreme Court ruling in a major case involving birth control and the Affordable Care Act and kind of how millions of people are going to interact with the government. That's what Shank says happened. So Jodi, what does Shank do with this information?

Well, initially he freezes, he says. I knew at that point that I was now in possession of highly guarded information. And it created an ethical conundrum for me. What am I to do with this? And my wife, Cheryl, remembers me pacing up and down in my study, I literally prayed, dear God, what shall I do with this information? So what does he do with the information? He uses it kind of internally at first, he says. I don't mind telling you, but it's a form of confession that I used it to my own advantage. of emails from June of 2014, in which he's writing to his staff, and he seems confident both of the victory and the author. These emails don't prove anything, but they strongly suggest that Shank knows the outcome and is using it to make his plans. I was able to write promotional material,

news releases and statements and so forth, knowing now what that decision was. But the kind of bigger decision on his mind at this point is whether or not he's going to tell the Hobby Lobby owners, the Greens. As, you know, the leader of a nonprofit organization, one of the most besetting problems is raising enough money to keep operational.

Because he really wants something from them. I mean, he wants further donations. I was constantly in a money chase. That's not easy to find. There's a lot of competition. And the Greens were always prospective major donors. And so I wanted to give them something of value, and perhaps that would engender a reciprocal gift back.

And then what he says is that on June 29th, the night before the announcement, I finally gave in to my own drive to inform the Greens. He calls Steve Green and tells him the outcome of the case. Basically tells the plaintiff in the case, a member of the Hobby Lobby family, how this ruling is going to go. Exactly. And he sends him a follow-up email. And what that email says is, as I mentioned,

we'll need to keep it strictly in the family. In other words, he seems to be warning Steve Green, don't tell anybody else what I told you. Wow. So that is Rob Shank's account. And Joe Becker and I reached out to everybody else involved in this story, and here's what they say. Steve Green, through his company, declined to comment. Mm-hmm. Gail Wright acknowledges that the meal occurred, but denied obtaining or passing on this information.

Her husband, Donald, by the way, has passed away. Justice Alito acknowledges that there was a meal but denies that he or his wife gave out any kind of information about the decision. And he also said something really interesting about their friendship with the rights. He said, I never detected any effort on the part of the rights 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. In other words, if the rights were attempting to influence me in some way, I didn't know it.

Jodi, I have to imagine that the disclosure of the Hobby Lobby case in the account that Rob Shank gave you is the high-water mark for this project that he has embarked on to cultivate these conservative justices on the Supreme Court. So what happens after this 2014 moment? Basically, in the years after the Hobby Lobby decision, he begins to feel very uncomfortable in his role. My exit from the anti-abortion movement and all of the right-wing politics that I had enabled during those years came over like a 10-year period. It was a long exit. He's at the head of this anti-abortion organization, but he's beginning to have doubts privately.

And it has to do with a kind of bigger political picture. For example, he becomes very involved in efforts to combat gun violence. And he feels like if you want to preserve human life in this country, that is part of the way to do it. And then he also begins to question his own views on abortion. So there's one story in particular he points to when he's talking about this transformation. I was in Montgomery, Alabama. I was arrested for my protest activity. I was arrested for my protest activity, and because the jail was overpopulated at that time, they stuck me in a cell on the psychiatric wing of the jail.

And about three cell doors down from me, there was a woman who was obviously mentally ill, and she was screaming just endlessly. And she was pleading for someone to come to the aid of her children. Please, somebody help my kids. I have three babies. Where are my babies? Who's taking care of them? And I was thinking, why isn't anyone coming to this woman? No one cared. Nobody was coming to this woman's aid. And during my years in the anti-abortion movement, I had this vision always of a woman, rosy-cheeked, always white, cradling the baby. And we use these images quite often. Like the Gerber baby. Yes, cradling a little Gerber baby that she had just given birth to because she listened to our pleas for her to not kill her child. And why would any woman want to choose abortion when she could have this level of happiness? But that wasn't the reality of this woman's life and experience with her children.

It snapped me out of that imaginary world I had been in. And I realized in our movement, we had demanded that women in an unwelcome pregnancy enter our fantasy of an idyllic life where the baby born to you will be loved, will be supported. There will be an army of pro-lifers who will come around her and support her and provide everything from diapers to medical care to child care and on and on it goes. Well, there is no such reality. What he basically says is that he wishes he lived in a perfect world in which abortion wasn't necessary and which every child could be cared for. But

because we don't live in that world, he feels like it has to be allowed. So by 2018, he actually writes an op-ed in the Times urging Roe to stand. Huh. So he does a complete 180 on the central animating forces behind this whole project. He breaks with the movement and he's regarded as a traitor. But what he says is that by the time the Dobbs leak came around, that's the leak to Politico of the decision overturning the right to abortion, that that provoked a kind of second crisis of faith for him. So I remember when the story broke about this leak of the Dobbs decision. At first, I didn't believe it. I just thought somebody's got something wrong here.

something wrong here. All the while, it was conjuring up this memory. And I thought, oh my God. And then I had to think more deeply about the meaning of that leak back in 2014 and what I did with it. And then that brought in many more questions about how damaging such a thing can be. And at the same time, Schenck is trying to embark on a kind of new life. He wants to recast himself as a progressive evangelical leader. I was on again, off again. Should I go public? Should I not? Should I inform the court? Should I not? I had very conflicted feelings about these justices that I had developed my own personal affection for. I like Justice Alito. I'm going to admit to that. I like him. But what happened there, I had no doubt, was harmful.

So he writes this letter. I eventually drafted a letter to the Chief Justice. He gives his account of what he says is the Hobby Lobby breach. He says, I think this info is relevant to the inquiries you're making in the Dobbs Lake. I eventually mailed the letter to the Chief Justice on July 7th. And at the same time, he starts confessing his conduct to us in a series of interviews. Jodi, when Rob Shank was done telling you and Joe Becker this entire story and saga about the influence campaign that he waged against the justices and what he says was his disclosure of the Hobby Lobby case, I'm curious what the two of you were thinking and what the meaning of the story was to you. Look, obviously, there are some echoes

between the Dobbs leak and Shank's account of a Hobby Lobby breach. These are both big conservative goals. They're both stories about decisions getting out early, and they're both very unresolved situations. We don't know who was responsible for the Dobbs leak. The court hasn't said much. But if you go back and look at Rob's whole account, both the kind of influence campaign and then the very controversial allegation of the Hobby Lobby breach, it's all premised on this idea that the Supreme Court is much more permeable than it looks, that this institution

that looks very removed to most of us actually has these ways in. And in many ways, no matter what you think of Schenck or no matter how you evaluate this story, Schenck is right, or at least his original theory was. The Supreme Court is much more permeable than it looks. When we did our research, what we discovered is that the Supreme Court is kind of a self-policing institution. It's subject to remarkably few rules. For instance, if you look at the ethics code that applies to federal judges, it actually does not bind Supreme Court justices. And the institution doesn't have the kinds of disclosure rules that we see in Congress with lobbying laws or in the executive branch with White House visitors logs. And as a result, a lot of the

stuff we've been able to document, like Schenck's efforts to build these relationships in the Supreme Court Historical Society and the meals together, the trip to Jackson Hole, none of this, we think, went reported and it wasn't required to be reported. Interesting. And the court keeps getting tripped up by this lack of transparency in very big and embarrassing ways. There's the story about Justice Thomas and his wife and her involvement in the Stop the Steal campaign.

He did not recuse himself from cases involving that effort. Right. There's the Dobbs leak, still a bit of a mystery. And now there's Shank's allegation of another breach. So this is not like a small set of questions about the technicalities of disclosure. This is one of the really big democracy questions we face right now

because the nine people who are, by many measures, the most powerful people in the country are not really operating with that formal a set of rules. And nobody's watching them. We can't really see what they do. Right. Which leaves them vulnerable, Which leaves them vulnerable, just the way Rob Shank said it did. Exactly. So that's the question. Does this institution need to change in some way to regain the public trust? Well, Jodi, thank you. We appreciate it. Thank you. We appreciate it. Thank you.

In the days since the Times published its findings, several members of Congress have demanded an investigation into the alleged disclosure of the Hobby Lobby ruling to Robert Shank and called for binding ethics rules for the justices. In a letter to Chief Justice Roberts, Senator Sheldon Whitehouse of Rhode Island and Representative Hank Johnson of Georgia, Democrats who lead committees with jurisdiction over the courts, wrote that the investigation,

quote, only deepens our concerns about the lack of adequate ethical and legal guardrails at the court. On Monday afternoon, the Supreme Court's legal office issued a response to the two lawmakers. In a letter, the court defended Justice Alito, saying there's no evidence that he violated ethics rules. But what the court did not say was whether it is actually investigating Shank's claims. We'll be right back. Here's what else you need to know today. In China on Monday, police swarmed the streets of Beijing and Shanghai in an attempt to prevent the kind of large-scale protests that broke out in multiple cities over the weekend

when thousands of people demonstrated against the country's strict COVID restrictions, including rolling lockdowns that can last weeks or months at a time. The heightened police presence largely seemed to work. There was little sign of protests in either city. And in the latest fallout from the downfall of FTX, the cryptocurrency exchange that filed for bankruptcy earlier this month. A major crypto lender has itself filed for bankruptcy. The company, called BlockFi, lent money to ordinary investors eager to buy crypto, but had borrowed hundreds of millions of dollars from an FTX subsidiary to finance its operations.

As a result, when FTX collapsed, BlockFi soon toppled as well. Today's episode was produced by Rob Zipko and Luke Vanderploeg, with help from Muj Zady. and Luke Vanderploeg, with help from Moosh Zady. It was edited by Lisa Chow and Ben Calhoun, contains original music by Marion Lozano, Dan Powell, and Rowan Nemesdo, and was engineered by Chris Wood. Our theme music is by Jim Brumberg and Ben Landsvark of Wonderly.

That's it for The Daily. I'm Michael Barbaro. See you tomorrow.