Alito’s opinion overturning Roe was filled with rhetoric fed to Supreme Court by the religious right

Alito’s opinion overturning Roe was filled with rhetoric fed to Supreme Court by the religious right

July 31, 2022 0 By Ellen Novack

Faith and Action in the Nation’s Capital (now known as Faith & Liberty) is a Christian “outreach” group headquartered directly across the street from the United States Supreme Court. It operates as a type of religious lobbying organization, seeking to influence public policy through “ministering” to highly placed officials in the U.S. government. In 2018 it was absorbed by Liberty Counsel, a group that routinely files amicus  (so-called “friend of the court”) briefs with the Supreme Court, advocating for Christian positions on political issues.

As reported here previously by April Siese, immediately following the Supreme Court’s decision in the Dobbs v. Mississippi case, overturning its landmark Roe v. Wade decision and repudiating the constitutional right of women and pregnant individuals to terminate their pregnancies, the vice president of Faith & Liberty and executive director of Liberty Counsel’s Washington “ministry,” Peggy Nienaber, celebrated that decision in front of the Supreme Court’s offices, boasting of her group’s personal access to the court and her own participation in prayer sessions with several individual justices, both before and after the Dobbs opinion was issued. As noted by Kara Voght and Tim Dickinson, writing for Rolling Stone, it appears that Nienaber was unaware her remarks were being recorded at the time:

She spoke to a livestreamer who goes by Connie IRL, seemingly unaware she was being recorded. “You actually pray with the Supreme Court justices?” the livestreamer asked. “I do,” Nienaber said. “They will pray with us, those that like us to pray with them.” She did not specify which justices prayed with her, but added with a chortle, “Some of them don’t!” The livestreamer then asked if Nienaber ministered to the justices in their homes or at her office. Neither, she said. “We actually go in there.”

Liberty Counsel had filed an amicus brief in the Dobbs matter, and the organization’s brief was cited by the court’s conservative majority in their opinion. It now appears, as reported by Nicole Lafond, writing for TalkingPointsMemo, that much of the language used by Supreme Court Justice Alito in that opinion directly mirrors the anti-choice rhetoric propagated by Liberty Counsel and similar groups over the past two decades.

A former leader of a religious right activist group recently admitted on a podcast that the language that Supreme Court Justice Samuel Alito used in his damning majority opinion overturning Roe v. Wade mirrored rhetoric the Christian group has been pushing on Supreme Court justices for decades.

As Lafond reports, Rev. Rob Schenck headed the Faith and Action group for 20 years. He is no longer affiliated with it and has publicly renounced the group. In a podcast released on July 16, “Christian Nationalism and the Court,” Schenck was interviewed by Rabbi Jack Moline, president emeritus for the Interfaith Alliance, a national group dedicated to religious freedom that positions itself as an alternative to the religious right. At the outset of the podcast, Schenck is described by Moline as a leading architect of the religious right’s efforts to transform the court into an instrument of right-wing Christian policy.

Interestingly, Schenck recalls former Justice Antonin Scalia told him that Roe’s reversal would never happen in their lifetime (he was only half-right, apparently). In the interview, he is quite candid in his mixed reaction to the Dobbs opinion, realizing that his own activities had led to its issuance (he now calls it a “catastrophe”).

Schenck is unequivocal that Alito’s phraseology in Dobbs unmistakably parrots the rhetoric his own group used to influence the court’s decision, carefully inculcated through years of so-called “prayer meetings.” 

“It was a polemic from our side of the movement, which startled me, took my breath away,” he said. “He was using phrases we had invented as bumper sticker slogans in a Supreme Court decision. It was breathtaking to me.”

Significantly, he confirms that he only ever spoke to the “conservative” justices, visiting their chambers “often” for two decades. As Lafond reports, that effort was always cloaked in coded language, an intentional effort to “invest” their relationship with a specific justice for the ultimate “payback:”

“We were careful,” he said. “You had to observe boundaries with the justices always and even in your language. So, for example, it would be a big no-no to pray something like: ‘Lord, we pray that same sex marriage will never be legalized in America.’ That, that would be too forward. It would be everything from boorish to a technical violation of their quasi-ethical rules.”

Instead the group members would say something like: “Lord, we thank you that justice so-and-so is on the bench when we must defend the sanctity of marriage and the family,” he said.

By definition, Supreme Court justices—as most judges in general—are known for their discernment.  They are, for the most part, not clueless dotards, unable to recognize when their authority is being pandered to. So when, as Schenck describes, a justice would intone an “amen” after a “prayer session” emphasizing a position the religious right desired, Schenck knew that he had scored a point.

In the podcast, Moline also asks Schenck specifically about the recent case of a 10-year-old girl who had been raped and was forced to travel to Indiana to obtain an abortion. He describes how the mindset of the religious right in such a case is dominated by an inculcated suspicion of the pro-choice position, to the extent that the most common reaction would be “dismissive,” implying that the story was false in some way, a “satanic” intrusion into “God’s will.” If this is, in fact, the typical reaction of the right, it goes a long way toward explaining the unusually vituperative aspect of Alito’s Dobbs opinion.

As Shenck’s statements make clear, the quaint notion that this Supreme Court is rendering its decisions on so-called cultural issues based on the “law” is largely illusory. The conservative majority of the court made its decision in Dobbs based on its religious predispositions and biases carefully molded for decades by a relatively small group of Evangelical Christians and conservative Catholics, a group that is in no way representative of the greater population in this country. Insofar as existing law conflicted with those biases, the law itself was to be discarded, which is why the court felt no compunction with discarding decades-old precedent.

But beyond the appalling aspect of supposedly independent and objective justices solemnly “praying” with and granting such access to these radical and extreme religious groups, the court’s tolerance for such rank influence-peddling is itself a recipe for illegitimacy, whether in the realm of reproductive rights, environmental protections, or anything else.

For all their formal, black-robed solemnity, in the end, the only thing that matters for judges is their integrity. Once that’s been abandoned, no one can—or should—ever trust them again.