Quelle horreur! Did the Supreme Court commit a major conflict of interest by praying with evangelicals affiliated with an organization that submitted an amicus brief in the case of Dobbs v Jackson Women’s Health, the decision that overturned Roe v Wade? Or did they just follow a very long tradition of engaging with people regardless of status?
At an evangelical victory party in front of the Supreme Court to celebrate the downfall of Roe v. Wade last week, a prominent Capitol Hill religious leader was caught on a hot mic making a bombshell claim: that she prays with sitting justices inside the high court. “We’re the only people who do that,” Peggy Nienaber said.
This disclosure was a serious matter on its own terms, but it also suggested a major conflict of interest. Nienaber’s ministry’s umbrella organization, Liberty Counsel, frequently brings lawsuits before the Supreme Court. In fact, the conservative majority in Dobbs v. Jackson Women’s Health, which ended nearly 50 years of federal abortion rights, cited an amicus brief authored by Liberty Counsel in its ruling.
In other words: Sitting Supreme Court justices have prayed together with evangelical leaders whose bosses were bringing cases and arguments before the high court.
We’ll get back to that claim in a moment. First, though, let’s scroll to the bottom of the article, where we discover that this turns out to be de rigueur at the Supreme Court. In fact, that gets explained by legal scholar from the Left-leaning Brookings Institute and UCLA almost at the very end of Rolling Stone’s hyperventilation, and only given a single paragraph:
Prayer unto itself in no way presents a conflict of interest for the justices, says Russell Wheeler, a visiting fellow of governance studies at the Brookings Institution, not even with a group like Faith & Liberty that has business before the court. Justices are allowed to visit there with whomever they’d like in their private chambers, and have socialized with interested parties throughout the court’s history. President Franklin Delano Roosevelt, for example, routinely played cards with the high court’s magistrates, and Scalia went duck hunting with former Vice President Dick Cheney. What would amount to an ethical concern would be if they’re discussing those cases as they pray — “or if the prayer sessions would influence how justices rule in a particular case,” says Adam Winkler, a Supreme Court expert at the University of California Los Angeles.
So it turns out that this is a big, huge, fat nothingburger. It’s even more silly given the fact that Faith & Liberty and Liberty Counsel weren’t even parties to Dobbs v Jackson Women’s Health. The parties in this case were the state of Mississippi and the abortion clinic that Mississippi’s law would have impacted. Lots of organizations submit amici briefs to the courts, and no one has ever suggested that judges should then hermetically seal themselves away from said organizations and members.
In Dobbs, multiple Catholic dioceses submitted amici briefs, as did the US Conference of Catholic Bishops. Does that mean that the Catholic justices should refrain from going to Mass? How about the amicus brief filed by Howard University School of Law — does that prevent any justice from speaking at the university or attending any of its events? Should the justices bar entry into their chambers by any member of the leadership of the American Bar Association on the basis of their amicus brief? How about the Southern Poverty Law Center, the National Organization of Women, 236 members of Congress, or the ACLU? Should they all be expelled from the justices’ offices, especially given how often they file such briefs in high-profile cases?
This is a profoundly dumb argument, entirely negated by the paragraph that Rolling Stone buries at the bottom of the piece and the experts they consulted. Winkler’s still unhappy, but not about the prayer lives of the justices. He thinks that Dobbs and other recent decisions have become too “religious”:
For Winkler, the greater concern is not prayers, but the “religious-themed” decisions he’s seen come down from the high court this term, pointing to not only the Roe reversal but also opinions that permit unchecked free exercise of First Amendment rights. “The problematic aspect isn’t whether they’re praying,” Winkler says, “but that several justices seem committed to reading their religion into the Constitution.”
This is utter nonsense. The Dobbs decision didn’t rest on any religious themes and disappointed some pro-lifers by avoiding their core issue on the definition of human life. Instead, Justice Samuel Alito only noted that fifty years of judicial usurpation of policymaking on the question of “potential life” had failed to settle it, and that the issue didn’t belong to the judiciary at all. The only references to religion in all of the Dobbs opinions are to religious education cases as citations for the right to privacy that the Roe court interpreted as an inviolable right when it came to abortion. Alito only brings it up to point out the core difference between Loving, Skinner, Griswold, and Roe:
Only the cases involving this second sense of the term could have any possible relevance to the abortion issue, and some of the cases in that category involved personal decisions that were obviously very, very far afield. See Pierce, 268 U. S. 510 (right to send children to religious school); Meyer, 262 U. S. 390 (right to have children receive German language instruction).
What remained was a handful of cases having something to do with marriage, Loving, 388 U. S. 1 (right to marry a person of a different race), or procreation, Skinner, 316 U. S. 535 (right not to be sterilized); Griswold, 381 U. S. 479 (right of married persons to obtain contraceptives); Eisenstadt, 405 U. S. 438 (same, for unmarried persons). But none of these decisions involved what is distinctive about abortion: its effect on what Roe termed “potential life.”
The Dobbs majority never settles the issue of “potential life,” as one might expect in a religious-driven decision. Instead, they overturned the arbitrary line drawn for it in Roe and Casey and sent that question back to the states and the people. A religious decision would have banned abortion altogether by recognizing the civil rights of human life from the point of conception, which the decision in Dobbs never even contemplates. And even that would likely rely less on religious principle than the clear science of human biology, or even biology in general.
You have to work hard to make an occasional prayer session turn into a constitutional crisis. Rolling Stone certainly gave it the ol’ college try here, but it only just points out how biased and unserious their analysis is.