Will West Virginia v. EPA cripple regulators? Not if Congress steps up.
"The rightwing US supreme court has climate protection in its sights P - "Not only was this case about a regulation that does not exist, that never took effect, and which would have imposed obligations on the energy sector that it would have met regardless. It also involves two legal doctrines that are not mentioned in the constitution, and that most scholars agree have no basis in any federal statute .. https://www.theguardian.com/commentisfree/2022/feb/28/us-supreme-court-rightwing-climate-crisis.";"
In West Virginia v. Environmental Protection Agency (EPA) .. https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf , the Supreme Court has struck down the never-executed centerpiece of the Obama administration’s climate policy: the Clean Power Plan, a set of rules governing fossil-fuel-fired electric generators. Just as importantly, Chief Justice John Roberts, writing for a 6-3 majority, announced in no uncertain terms that the basis for the Court’s decision was the “Major Questions Doctrine” (MQD)—a phrase no Supreme Court majority had previously invoked explicitly.
As Roberts writes .. https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf , the MQD “label” has now taken “hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”[1 .. https://www.brookings.edu/research/will-west-virginia-v-epa-cripple-regulators-not-if-congress-steps-up/#footnote-1 ] Rather than treating such assertions of power as normal statutory interpretations, in which judges are highly deferential to agency choices, courts are to approach extraordinary, novel actions with far-reaching consequences with a greater degree of skepticism. If Congress wishes to effect a sweeping overhaul of the nation’s economic activity, it must do so quite explicitly—with a “clear congressional authorization,” in Roberts’ phrasing. Agencies may not, on their own initiative, transform a statutory scheme hitherto used for one thing to perform some other ambitious work, even if the law’s language makes their statutory interpretation “colorable.”
Justice Elena Kagan, writing in dissent, sees Congress as having used “capacious terms” in the section at issue to give the Environmental Protection Agency great discretion in fashioning its emissions reduction scheme. She claims that the purported precedential basis for the MQD is no such thing but is rather just a series of decisions in which the court performed “normal statutory interpretation.” She insists that in approaching an old statute, “newness” of application “might be perfectly legitimate—even required.” According to her, respecting the broad grant of power made by earlier congresses is the appropriate way to respect legislative intent. In a sharply critical passage, she claims that “The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”
In the run-up to the release of this opinion, many commentators suggested that the court’s conservatives were about to revolutionize American administrative law, such that agencies would find themselves much more constrained in issuing regulations responsive to current problems. Now that the opinion is out, many accuse the Court’s conservatives of creating an unpredictable regime that is “not pro-democracy, it’s anti-regulation,” in the words .. https://twitter.com/steve_vladeck/status/1542527437057171458?s=20&t=u_bFvIgrO_RMvkhWAoF72w .. of Professor Steve Vladek.
In this research note, I explore the history of the MQD to explain why such charges are mistaken, and why the doctrine is not nearly as open-ended as its critics, including Justice Kagan, imply. Properly understood, the MQD strikes a blow for the ongoing vitality of representative government, without posing any serious threat to the potency of American regulation.
History of the Major Questions Doctrine
The MQD is a relatively recent innovation in the Supreme Court’s approach to statutory interpretation. It has been articulated (without generally being explicitly named) in fewer than a dozen cases, and as discussed below, there is an extensive debate as to the doctrine’s implications—one that will, no doubt, persist even after West Virginia v. EPA has been decided.
The basic idea of the MQD is easy enough to state: courts should be skeptical whenever an executive agency interprets a law to empower itself in an extraordinary or novel manner, withholding the deference that agencies customarily receive when interpreting ambiguous statutory language. If the executive branch is going to take a transformative action, it must show that legislators clearly intended to enable that action, and not merely that they once enacted statutory language that could be plausibly read to include it. Failing that, courts should block the action. Legislators, if they choose to, can respond by passing a clear authorization.
----- [On the other hand, can Congress be so explicit: "The stakes are higher still: by ruling on the case at all, the court usurps power constitutionally entrusted to government’s politically accountable branches. Article 3 .. https://www.law.cornell.edu/constitution/articleiii .. of the constitution limits federal courts to deciding concrete “cases and controversies” about the rights of individual parties. Yet this “case” involves neither a concrete dispute nor the specific rights of any of the challengers. Instead, it’s akin to an exam question about the options theoretically available to a federal agency to address a grave problem. In answering that hypothetical question, the court will have arrogated to itself an unprecedented, open-ended power to reshape the nation’s social and economic landscape – far in excess of its legitimate authority, as the foundational case Marbury v. Madison .. https://supreme.justia.com/cases/federal/us/5/137/ .. put it, to “declare what the law is”." https://investorshub.advfn.com/boards/read_msg.aspx?message_id=169302320 In rapidly changing times, should they.] -----
Prior to its clear announcement in West Virginia, this idea was encapsulated in several key phrases that MQD cases have repeatedly cited. Striking down a rule of the Occupational Safety and Health Administration in a plurality opinion in the Benzene Case (1980), Justice John Paul Stevens wrote: “In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry.” In finding that the Food and Drug Administration had over-interpreted its authority in asserting its jurisdiction over tobacco products, Justice Sandra Day O’Connor wrote: “[W]e are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion” (FDA v. Brown & Williamson Tobacco Corp., 2000).[2] In Whitman v. American Trucking Associations (2001), Justice Antonin Scalia wrote: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” The per curiam majority in one of the most recent MQD cases, Alabama Association of Realtors v. HHS (2021), rejected the proposed statutory backing of a sweeping national eviction moratorium as “a wafer-thin reed on which to rest such sweeping power.”
If the basic thrust of these formulations is clear, however, the practical reach of the MQD is difficult to state with confidence. Just how “clear” must a statute be to establish that Congress intended to endow an agency with the power to address some problem? And how consequential must a policy be to qualify as “major”—is economic impact the relevant metric, or might some other aspect of political salience also qualify?
Is the Major Questions Doctrine merely a pretext for conservative judges to stop agency actions?
Given the unresolved nature of these questions, some scholars see the MQD as basically an empty vessel, to be filled up opportunistically with judges’ own preferences. In their telling, conservative justices are opposed to ambitious regulatory actions even when Congress has clearly authorized them, and the MQD gives them an excuse to make themselves into a veto point in the policymaking process even where nothing about their competence as judges makes them suited for the role. Professor Dan Farber, for example, asks .. https://legal-planet.org/2021/11/04/major-questions-about-the-major-questions-doctrine/ , “Doesn’t the major questions doctrine involve the Court itself in making decisions that are far more suited to legislators than courts?” Similarly, Professor David Driesen charges .. https://www.theregreview.org/2022/01/31/driesen-major-questions-juristocracy/ .. that when justices claim that they are preserving major questions for legislators to decide, they are actually just setting themselves up to “usurp the policy decisions of the elected branches of government.”
From these characterizations, one might think that the MQD has exclusively been invoked by conservative justices seeking to frustrate Democratic administrations, but that is not the case. The Supreme Court has sometimes invoked the MQD to strike down decisions of Republican administrations. Indeed, the first case to clearly style the MQD involved striking down decisions made by the Federal Communications Commission during the Reagan and Bush 41 administrations (MCI v. AT&T, 1994). A later case saw a mostly liberal majority striking down an attempt by the Bush 43 administration to use federal drug laws to prevent assisted suicide (Gonzalez v. Oregon, 2006).
Nor has invocation of the MQD invariably led to the justices striking down an action. In American Trucking, the Court ruled on behalf of the Environmental Protection Agency, rejecting a challenge to its National Ambient Air Quality Standards. Justice Scalia’s opinion for the unanimous court invoked the MQD in defense of the agency’s interpretation, which it found required the least guessing about what Congress might have meant. Even more significantly, in King v. Burwell (2015), Chief Justice John Roberts invoked the MQD to explain why deference to the Internal Revenue Service’s interpretation would be an inappropriate way to decide the question of whether federal tax credits should be made available to participants in federal healthcare exchanges. Given the huge importance of the question involved, Roberts said that it was implausible that Congress meant to leave the question to the discretion of the IRS. Nevertheless, he found that the best reading of the statute supported the provision of subsidies, giving the Obama administration a significant win, locking in an important provision of the Affordable Care Act such that it could not be reversed in a future Republican administration. As I discussed in a Brookings piece .. https://www.brookings.edu/blog/fixgov/2015/06/25/king-v-burwell-congressional-dysfunction-and-the-contemporary-separation-of-powers/ .. in 2015, in that case it was the dissenting conservative justices (Scalia, Thomas, and Alito) who denounced judicial usurpation, dismissing the idea of realizing Congress’ true intent as an inappropriate reason to depart from the most natural reading of the statutory text.
The MQD should not be dismissed as the exclusive province of conservatives, then, nor should it be assumed that any invocation of the doctrine will lead to a reversal of agency policy.
How the Major Questions Doctrine relates to the Nondelegation Doctrine
Some articulations of the MQD have nevertheless left room to wonder whether the doctrine was being fashioned to enable a frontal assault on America’s regulatory state—one that would not just force questions onto the contemporary Congress but significantly limit the legislature’s ability to delegate important matters to executive agencies even when majorities are determined to do so.
That approach was most clearly outlined in two opinions by Justice Neil Gorsuch—his dissent in Gundy v. United States (2019) and his concurrence in NFIB v. OSHA (2022), the case striking down the Biden administration’s vaccine mandate on large employers. In his 2019 dissent .. https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf , Gorsuch explained that the Court must, one way or another, ensure that Congress does not delegate the legislative power, which the Constitution gives to it alone, to the executive. In the past, it has relied on the “intelligible principle” doctrine to do so.Under that rule, courts must strike down as impermissible any law that endows an agency with an open-ended mission to go out and do good in its respective field. But over time that doctrine became a perfunctory, near-meaningless test, and the Court has sought other tools to combat impermissible delegations. Gorsuch characterizes the MQD as one such tool, applied “in service of the constitutional rule that Congress may not divest itself of its legislative power by transferring that power to an executive agency.” In his 2022 concurrence .. https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf , he further explicates the role of the MQD as complementary to the nondelegation doctrine. Whereas the latter prevents Congress from intentionally giving away its own power, the MQD “guard[s] against unintentional, oblique, or otherwise unlikely delegations of the legislative power.”
Gorsuch’s concurrence .. https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf .. in West Virginia v. EPA, joined by Justice Samuel Alito, rearticulates and clarifies this position. As Gorsuch sees it, the ultimate basis for the MQD is the constitutional requirement that Congress be the branch that makes policy decisions. By seeking “to exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond its initial assignment,” agencies may try to undermine that fundamental stricture, and the courts must stop them.
The problem with this “strong” articulation of the MQD, as Gorsuch’s critics .. https://www.resources.org/common-resources/the-supreme-courts-new-threat-to-climate-policy/ .. see it, is that there is no obvious limiting principle; armed with this sort of skepticism, the Court seems poised to make it impossible for Congress to set up a statutory framework capable of responding to developing circumstances, since super-clarity at the time of drafting seems to be required. In his concurrence, Gorsuch attempts to address such concerns, enumerating the relevant criteria for invocation of the MQD: great political significance, great economic impact, or impinging on an area traditionally left to state law. He then offers other criteria for clarity: a provision should be prominent within a statutory scheme, not a “gap-filler”; a statute’s age and history of usage may clarify its proper limits; and the agency’s own past usage may suggest the appropriate reading of a provision. Not surprisingly, however, Justice Kagan and others are unconvinced that these lists really decide anything.
Time is of the essence
If that conception of the MQD seems to ready it as an anti-democratic counterweight against ambitious legislation, there are nevertheless other ways to understand the doctrine that clarify how and why it is meant to enhance democratic control and the legitimacy of our regulatory policymaking. One focuses on the role of the passage of time in complicating our interpretation of statutory laws.
Professor Jonathan Adler
[Jonathan H. Adler (born November 3, 1969) .. an American legal commentator and law professor at the Case Western Reserve University School of Law. He has been recognized as one of the most cited professors in the field of environmental law.[1] His research is also credited with inspiring litigation that challenged the Obama Administration's implementation of the Affordable Care Act, resulting in the Supreme Court's decision in King v. Burwell.[2] https://en.wikipedia.org/wiki/Jonathan_H._Adler ]
has explained this position most clearly.
-- We live in a dynamic world, yet our statutes are stagnant. As the world changes and popular understanding of contemporary problems evolves, statutes remain in place. New problems emerge, preexisting problems metastasize, and our understanding of present and prospective problems improves. Yet statutes are infrequently amended to account for these changes.[3 .. https://www.brookings.edu/research/will-west-virginia-v-epa-cripple-regulators-not-if-congress-steps-up/#footnote-3 ] --
One way to understand the MQD is an attempt to combat an interpretive approach that might otherwise amount to “Congress legislating now the power for an agency to legislate later,” especially in contexts where changing facts on the ground mean that foresight of current circumstances was impossible.
Adler points to a formulation made by Justice Kavanaugh when he was still a member of the D.C. Circuit Court of Appeals, the “major rules doctrine.” In judging whether the Obama administration’s famous Net Neutrality rule, promulgated by the Federal Communications Commission, was permissible, Kavanaugh argued that there must be a presumption against Congress making a freestanding endowment of power to the executive branch. Given that the congresses that passed the legislation being used to justify the rule operated without any knowledge whatsoever of the relevant policy environment, it should have been impossible to overcome that presumption. Adler points out that a discussion of the aging and obsolescence of statutes could aid this logic, although Kavanaugh did not explicitly invoke those points.
Does this mean that courts should block all instances of “teaching old laws new tricks .. https://nyujlpp.org/wp-content/uploads/2013/10/When-Can-You-Teach-an-Old-Law-New-Tricks-16nyujlpp-689.pdf ”? At the very least, it means that as a statute becomes more antique, the burden for justifying some new action based on its language should get higher. That does not necessarily mean that a law should be “use it or lose it,” since Congress might well wish to empower an agency to deal with some definite-but-rarely-occurring set of circumstances, such as a pandemic. But it would mean that if Congress wants its endowments of power to age well, it needs to take more care to identify the exact purposes and limits of its delegations.
Major questions as articulated in West Virginia v. EPA
Roberts’s opinion .. https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf .. in West Virginia v. EPA does a great deal to support this time-sensitive version of the MQD. In determining the proper understanding of Section 111(d) of the Clean Air Act, which was the EPA’s basis for promulgating its ambitious Clean Power Plan, the court’s majority leans heavily on the way that section had been used in the many decades of its existence until 2015. Quoting Justice Felix Frankfurter’s opinion in FTC v. Bunte Brothers (1941), the Chief Justice argues that “the want of assertion of power by those who presumably would be alert to exercise it” can be significant evidence that the statutory provision in question was not, in fact, meant to support such an assertion.[4 .. https://www.brookings.edu/research/will-west-virginia-v-epa-cripple-regulators-not-if-congress-steps-up/#footnote-4 ] The EPA’s long usage of 111(d) in ways that looked nothing like the Clean Power Plan stood as a powerful point against the propriety of the novel usage. As in Utility Air Regulatory Group, which also dealt with greenhouse gas issues under the Clean Air Act, the court was especially sensitive to the EPA’s “claim to discover in a long-extant statute an unheralded power.” Had the Clean Air Act been recently enacted or amended, instead of remaining virtually unchanged in the three decades since the Clean Air Act Amendments of 1990, the court’s willingness to see it used to launch an ambitious new program might well have been different.
This may seem to present something of a puzzle. Aren’t the conservatives on the court supposed to be committed to originalism on the Constitutional side and textualism on the statutory side—two doctrines which are against the idea that the meaning of words evolves with the times? If correct legal interpretations are supposed to be a function of unchanged statutory language, then how could they change or be time-sensitive?
It may be fair to note some inconsistency here. To the extent that conservative jurists have followed the late Justice Antonin Scalia in his vehement denunciation of legislative history as an appropriate type of evidence for understanding statutory meaning, the Major Questions Doctrine is indeed an awkward fit in its insistence that judges look beyond the immediately apparent meaning of the text. Conservatives should not hesitate to learn from Scalia’s critical interlocutors, such as the late Judge Bob Katzmann .. https://global.oup.com/academic/product/judging-statutes-9780199362134?cc=us&lang=en&; (who was, for many years, a scholar at Brookings), in approaching legislative history.
More fundamentally, however, conservatives’ insistence on unchanging textual meaning does not, in itself, resolve questions about what to do with vague provisions. As Justice Kagan .. https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf .. put it, “capacious terms” are meant to create discretion that might be utilized differently at one time or another—but there is no need to read them to create completely unconstrained discretion. What the MQD amounts to is an insistence that, under our overarching Constitutional system, it would be preposterous to imagine any Congress intending to create such an open-ended grant of authority, capable of justifying a significant reordering of society in later, unforeseen circumstances.
The basic point of disagreement between the majority and the dissent, and perhaps between most conservative and liberal legal scholars considering the contemporary regulatory state, is over the following question: Is a reservoir of regulatory authority created by old enactments a sufficient basis for justifying novel and far-reaching regulatory actions today?
In answering “no,” the Court explicitly demands that our representative legislature must continue to assert itself to orient our federal government’s responses to the leading challenges of our time. In no other way, it suggests, can our laws retain their legitimacy with the public. In answering “yes,” Kagan and the dissenters claim to be honoring the fundamental continuity of the people’s exercise of their sovereign power. In their view, the contemporary legislature could always assert itself to change the direction of regulatory power, but it need not do so for the country to adapt to new circumstances.
For those who see the democratic legitimacy of the contemporary Congress as hopelessly compromised, there is little question that the dissent’s view makes more sense. For those of us who believe that the renewed exertions of our legislators are the only means capable of securing policy legitimacy and stability, the majority’s view represents a fitting commitment to Constitutional self-government.
--- [The role the court is poised to play in West Virginia v. EPA .. https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/ .. is more breathtaking still. It stands ready not just to “publicly opine” on a broad legal question but to bind the entire federal government to its answer, restricting the range of policies the EPA –under President Joe Biden and future presidents – can even consider to reduce carbon dioxide emissions and tackle climate change.
[Insert: Is not a court that unilaterally steals constitutional rights of a federal government elected by the people stealing from the people it is supposed to serve?]
1 West Virginia v. EPA (2022), p. 20 of the Court’s slip opinion.
2 Notably, O’Connor also cited a 1986 law review article by then-Judge Stephen Breyer, in which he explained that “A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.”
3 Adler, Jonathan H. “A ‘Step Zero’ for Delegations.” The Administrative State before the Supreme Court (Washington, D.C.: American Enterprise Institute, 2022): 161–94, 167.
‘Operation Higher Court’: Inside the religious right’s efforts to wine and dine Supreme Court justices
"The rightwing US supreme court has climate protection in its sights"
-- Related: A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency 24 Oct 2021 Sheldon Whitehouse [...] My House and Senate colleagues and I have proposed legislation—the Assessing Monetary Influence in the Courts of the United States (AMICUS) Act3—to address the problem of undisclosed judicial-branch lobbying by dark-money interests.4 https://www.yalelawjournal.org/forum/a-flood-of-judicial-lobbying-amicus-influence-and-funding-transparency --
I At that point i guessed Whitehouse had to be Democrat. When is the last time a Republican worked to eliminate shady business. Also i'm surprised lobbying as presented in this article is not illegal.
A former evangelical leader details his group’s extensive program to influence Justices Thomas, Alito and Scalia through meals and entertainment. A prayer service is held in front of the Supreme Court.
Rob Schenck, an Assemblies of God minister who headed the Faith and Action group, said he arranged over the years for about 20 couples to fly to Washington to visit with and entertain Supreme Court Justices. | Mark Wilson/Getty Images
By Peter S. Canellos and Josh Gerstein 07/08/2022 03:15 PM EDT
The former leader of a religious right organization said he recruited and coached wealthy volunteers including a prominent Dayton, Ohio, evangelical couple to wine, dine and entertain conservative Supreme Court justices while pushing conservative positions on abortion, homosexuality, gun restrictions and other issues.
Rob Schenck, an evangelical minister who headed the Faith and Action group headquartered near the Supreme Court from 1995 to 2018, said he arranged over the years for about 20 couples to fly to Washington to visit with and entertain Supreme Court Justices Clarence Thomas, Samuel Alito and the late Antonin Scalia.
Schenck, who was once an anti-abortion activist but broke with the religious right in the last decade over its aggressive tactics and support for gun rights, said the couples were instructed before the dinners to use certain phrases to influence the justices while steering clear of the specifics of cases pending before the court — for example, to “talk about the importance of a child having a father and a mother,” rather than engage in the particulars of a gay-rights case.
“We would rehearse lines like, ‘We believe you are here for a time like this,’” which is a reference to the Old Testament Book of Esther in which the Hebrew woman born with the name Hadassah becomes queen of Persia and succeeds in preventing a genocide of her people.
Schenck said the goal was to create an ecosystem of support for conservative justices, as a way of making them more forthright in their views.
The previously undisclosed initiative by Faith and Action illustrates the extent to which some Supreme Court justices interacted with advocates for the religious right during a period when the court grappled with social issues such as abortion and gay rights. The calculated nature of Faith and Action’s efforts shows how outside actors can use social activities and expensive dinners to penetrate the court’s highly sealed environment.
Thomas and Alito did not respond to requests for comment through the Supreme Court. Efforts to reach the family of Scalia, who died in 2016, were unsuccessful.
Schenck’s organization, Faith and Action, became a part of Liberty Counsel in 2018 and is now known as Faith and Liberty. Its vice president, Peggy Nienaber, was quoted earlier this week as praying with Supreme Court justices .. https://www.rollingstone.com/politics/politics-features/roe-supreme-court-justices-1378046/ .. in a recording posted on YouTube and reported by Rolling Stone magazine. Schenck told the magazine that he began the prayer sessions as a way of building rapport with conservative justices.
Mat Staver, founder and chairman of Liberty Counsel, said, “I don’t know a lot about what Rob Schenck has done in the past . . . When he says he invited couples to wine and dine justices, I know of nothing like that that happened.”
Schenck pointed to one prominent evangelical couple — Don and Gayle Wright of Dayton, Ohio — as major funders of his group, which established an office directly behind the Supreme Court building. Don Wright became wealthy through his furniture business and real estate firm, owning homes in Jackson Hole, Wyoming, and Siesta Key, Florida.
Don Wright became wealthy through his furniture business and real estate firm, owning homes in Jackson Hole, Wyoming, and Siesta Key, Florida. | Courtesy of City of Centerville, Ohio
Schenck said that, in addition to making regular donations to Faith and Action, the Wrights financed numerous expensive dinners with Thomas, Alito, Scalia and their wives at Washington, D.C., hotspots including the Capital Grille. Don Wright died in 2020.
Gayle Wright did not return a phone message left at her Ohio home, seeking comment for this story. A request for comment made Friday to the family business Don Wright Realty, now headed by their son Scott, produced no immediate response.
Don Wright’s obituaries on Dignity Memorial and Legacy.com cited his charitable work with Faith and Liberty and his closeness to Supreme Court justices through his support for the Supreme Court Historical Society. Among the pictures featured on the Dignity Memorial site were images of the Wrights and their extended family with Scalia and Alito, and Don Wright with Chief Justice John Roberts.
“The late Antonin Scalia enjoyed hunting and fishing trips with the [Wright] family. But whether he was sitting in a hunting cabin with the guys or at a Supreme Court dinner he was always the same,” read the obituary on both sites.
In reporting Wright’s passing, The Dayton Business Journal wrote on August 3, 2020: “As trustee of the Supreme Court Historical Society, Wright became friends with several prominent justices, including Samuel Alito, Clarence Thomas and the late Antonin Scalia. An avid hunter/outdoorsman, Wright said Scalia would often accompany the family on hunting trips.”
Supreme Court Historical Society newsletters indicate Wright was a major donor to the group and was elected as a trustee for a three-year term in 2003 and again in 2006.
Schenck said he met the Wrights at Faith Baptist Church in Sarasota, Florida, where he was a guest pastor and they attended while staying at their vacation home in nearby Siesta Key.
He said the Wrights had strongly conservative views on abortion, homosexuality and gun rights, and dedicated themselves to reinforcing the Supreme Court justices’ own conservative views on the issues. They were the most active of the roughly 20 couples involved in the program Faith and Action called “Operation Higher Court,” Schenck said.
All the couples “knew they were being coached” and adhered to a “casual reporting procedure” in which they offered feedback on their dinners with the justices and their wives, Schenck said.
The Wrights were the most heavily involved of all the couples. “They set the standards,” Schenck said. “They were the most active, the most engaged.”
Staver, of Liberty Counsel, said he is familiar with one instance of Schenck coaching couples on how to behave around Supreme Court justices — but it was in connection with the historical society banquet, not private dinners.
“What he did was he would talk to them [the couples attending the banquet] about protocol. I saw him do that once. He would talk to them about how these are Supreme Court justices and he actually would say ‘don’t talk about issues or cases, this is just a dinner.’ He used it himself to try to get people to contribute to Faith and Action. Afterwards he would ask them how they liked it (the society dinner). That’s the coaching he’s talking about. He wasn’t saying set them up to ‘say this to them or that to them.’”
For his part, Schenck said that in addition to the dinners, Scalia was a guest at the Wrights’ home in Jackson Hole. A financial disclosure report .. https://pfds.opensecrets.org/N99999921_2006.pdf .. Scalia filed shows his transportation, food and lodging for a June 2006 visit to Jackson Hole were paid for by the Wyoming State Bar in connection with a continuing education program for lawyers. Similar reports show he spoke to the Wyoming State Bar in Cheyenne in September 2008 and to the Federalist Society in Laramie in October 2012, with expenses paid by those groups.
Property records indicate the Wrights sold their Jackson Hole home in 2013.
[Ok, my wondering about ellegality is answered here.]
As the leaders of a separate branch of the government, the justices have long set their own ethical standards. They are not bound by rules applied to other federal judges, and make their own decisions on whether to recuse themselves from cases on conflict-of-interest grounds. The justices file annual disclosure forms under the Ethics in Government Act requiring them to report gifts now worth more than $415 in aggregate, but meals are rarely reported as gifts and “personal hospitality” received at a host’s private home or business need not be reported. The justices also report annually on travel, lodging and meals received in connection with speaking engagements and legal conferences.
A review of more than a decade of financial disclosures from Thomas, Alito and Scalia found no reporting of restaurant or other meals as gifts, aside from food being included along with transportation and lodging expenses reimbursed by groups and entities sponsoring speaking events featuring the justices.
There are few public references to Faith and Action’s work with the judiciary, but a 2001 article .. https://charismamag.com/prayer-spirit/storming-the-capital-with-prayer/ .. in a Christian magazine, Charisma, described the group’s “Operation Higher Court” as offering “prayer and ministry to the Supreme Court justices.”
“The Supreme Court is the most insulated and isolated branch of the U.S. government,” Schenck told the magazine. “They do not interface with the public, so we’ve literally had to pray our way in there each step of the way.”
In the story, Schenck describes meeting and praying with Scalia just 24 hours after the court handed down its controversial decision resolving the 2000 presidential election, Bush v. Gore.
Schenck’s own decision to break with the religious right is detailed in the 2015 documentary “The Armor of Light,” and his 2018 book, “Costly Grace: An Evangelical Minister’s Rediscovery of Faith, Hope, and Love.”
He is currently the director of the Washington-based Dietrich Bonhoeffer Institute, named for the German theologian who opposed Nazism.
News 
Market Data 
Discover 
