Observations On A Potential Supreme Court Ethics Scandal That I Have No Idea What To Make Of…

What’s going on here? I wish I knew.

Rolling Stone has reported that during an evangelical victory celebration in front of the Supreme Court to celebrate the Dobbs decision,  Capitol Hill religious leader Peggy Nienaber got herself recorded saying that  she has prayed with sitting justices inside the SCOTUS building. “We’re the only people who do that,” Peggy Nienaber boasted. Nienaber is Liberty Counsel’s executive director of DC Ministry, as well as the vice president of Faith & Liberty, whose ministry offices sit directly behind the Supreme Court. Liberty Counsel frequently brings lawsuits before the Supreme Court, and filed an amicus brief in Dobbs v. Jackson Women’s Health.

Rolling Stone says,

Liberty Counsel’s founder, Mat Staver, strenuously denied that the in-person ministering to justices that Nienaber bragged about exists. “It’s entirely untrue,” Staver tells Rolling Stone. “There is just no way that has happened.” He adds: “She has prayer meetings for them, not with them.” Asked if he had an explanation for Nienaber’s direct comments to the contrary, Staver says, “I don’t.” But the founder of the ministry, who surrendered its operations to Liberty Counsel in 2018, tells Rolling Stone that he hosted prayer sessions with conservative justices in their chambers from the late-1990s through when he left the group in the mid-2010s. Rob Schenck, who launched the ministry under the name Faith and Action in the Nation’s Capital, described how the organization forged ministry relationships with Samuel Alito, Clarence Thomas, and the late Antonin Scalia, saying he would pray with them inside the high court. Nienaber was Schenk’s close associate in that era, and continued with the ministry after it came under the umbrella of Liberty Counsel.

Yikes.

I’m not sure what praying with someone, or the representatives of a group, signifies in conflict of interest terms. However, it certainly feels like the appearance of impropriety and a conflict at very least. 

Observations:

1. So far, this has only been reported in Rolling Stone, Jezebel, a hard-left women’s issues site, and a couple more in the same ideological orbit. Rolling Stone has little credibility with me after its University of Virginia fraternity gang rape story fiasco. However, the claim at issue is in this video (early on, fortunately)…

…so we know someone who said she was Nienaber at least claimed that she prayed with some of the Justices.

2. This came out yesterday, and I would have assumed that the mainstream media would have been on it like locusts on a corn harvest. Yet so far, I can’t find any follow-up from a source that isn’t overtly and openly partisan. This suggests to me that the Times, Post, CNN and the rest haven’t been able to confirm the story….which doesn’t mean it isn’t true.

3. I will be stunned if it is true, because it would be so spectacularly stupid, reckless, unethical and unprofessional for any Justices to participate in such an obviously controversial and provocative activity that could undermine the credibility and perceived fairness of the Court. I find it difficult to believe that Justice Roberts would permit it. If he did, it’s a terrible indictment of his judgment and leadership.

4. If the Rolling Stone story is true, however, it will be a major scandal, the worst in the Court’s history by far. It will also be the biggest gift to Democrats imaginable.

…and the Court will get no sympathy or support from Ethics Alarms. None.

30 thoughts on “Observations On A Potential Supreme Court Ethics Scandal That I Have No Idea What To Make Of…

  1. I’m….. Confused. Sorry, but why is this an issue?

    I think it’s safe to assume that some number of SCOTUS Justices pray. We assume, I think, that they pray in their offices every now and again (unless their offices are strict no-prayer zones). We assume, I think, that they pray with other people. We assume, I think, that they listen to sermons every now and again. So I’m confused as to why praying with someone in their office is so far outside the pale. Is this a problem because we’re supposed to pretend that those assumptions aren’t true, and this story is peeling back the curtain and dispelling our necessary fictions? If it were public, I think the issues would be obvious, and bragging about it is certainly tasteless, but a scandal? I feel like I’m missing something.

  2. Christians pray for everyone, even people we don’t like. Christians have prayed with/for Joe Biden. I’m not sure exactly what to make of this, because I see where you are coming from. Would prayer with Supreme Court Justices be off limits period?

    Loving others means “willing their good,” even if they are objectively bad people. This means you pray that they have good health, a great family, etc. You don’t pray for ill against them. There would need to be much more context for me to feel upset about this.

    • This is one of the reasons I don’t know exactly what to make of this one. I accept that praying with someone does not imply approval or alliance. However, I also accept that a litigant knowing that a judge deciding his or her case would be legitimately troubled by the judge praying with the opposing party or the opposing party’s stated supporter.

      • I think you’re overthinking this. I have no idea how I missed “Liberty Counsel frequently brings lawsuits before the Supreme Court, and filed an amicus brief in Dobbs v. Jackson Women’s Health.”, but once it was pointed out, this case became crystal clear… Judges shouldn’t interact with representatives that are likely to appear before them… Nevermind ones that are actively before them, even in an amicus capacity. Nevermind closed-door prayer meetings… I’m not even sure they should make small talk in hallways or let people hold doors open for them.

      • That makes perfect sense to me. I mean, if you switch it around, and the church of Satan had some kind of “prayer” that they did with Elena Kagan and Steven Breyer, it would look incredibly suspicious. As a practice, I would 100% agree it’s not a good idea for justices to pray with litigants in a case.

        Would it make a difference if the group offered to pray with all the justices, but only some of them accepted the offer? And if the prayer was general (like God, grant the justices wisdom) vs. a prayer that prayed for God to give the justices guidance to achieve a specific outcome, like praying for the court to protect innocent babies?

        I could see a Christian group offering to pray with all of the justices and not being taken up on the offer. But again, the facts are very broad here.

        • If a litigant offered to pray with all of the judges, it would be entirely in appropriate for any of them to accept that offer. Just as it would be entirely inappropriate for any of them to attend a cookout hosted by a litigant, even if it was “open to the whole court” or use the box seats of a litigant at a sporting event, even if it was offered to all of them.

          The problem lies in the litigant being a litigant – not in how many of the justices partook of the activities, nor whether they solicited the activities or the litigant offered the services to them.

        • Since Kagan and Breyer are both Jewish I hope you understand why I’m bothered by you associating them with the church of Satan which has rather high negatives on the cognitive dissonance scale.

          Will you, perhaps, modify your comment?

    • Praying with a Supreme Court Justice wouldn’t always be forbidden, but it’s definitely an “appearance of impropriety” breach, if the organization you represent routinely has business before the Court. If you run a blacktop paving business in Terre Haute, I wouldn’t see a problem praying with any of the justices. If you’re engaged in litigation that is before the Court, you probably should do your praying separate from the judges deciding your case, just as you shouldn’t play golf or go to happy hour at Dave & Buster’s with them, either.

      I have a hard time believing this story, though. It could be true, but Thomas, Alito, and Scalia all seem way too savvy to do something like this, knowing they’re the three Justices with the biggest targets on their backs. It just seems far too reckless for those three men in particular, very out of character.

      • Savvy? Thomas who sat and voted on a case that saw some of his wife’s emails at issue? Thomas who ruled to keep his wife’s emails secret?

        Since you don’t post that they would avoid this because it is WRONG but because they know it would embolden their opponents then consider; they’re essentially immune from impeachment because they could shoot people on Fifth avenue and Romney’s the only republican who’d vote to convict.

        So what’s to stop them? Roberts who has the power to assign who writes opinions unless the other 5 want to cut him out by going more extreme then he’s winning to sign off on in a single step?

        • Given that we don’t know the content of the alleged prayers, I’ll hold off on deciding whether it’s “WRONG” or not. I can think of many examples of prayers that wouldn’t be “wrong” for them to engage in, and many that would be, but the appearance of impropriety remains regardless of whether they were praying for a specific judicial outcome or for the Supreme Court cafeteria to have fish sticks that day.

          And I didn’t mean to suggest that the reason for not doing so would be to avoid emboldening their opponents, but merely that they are under extreme scrutiny by their critics, and would have to expect that such prayer meetings couldn’t possibly stay unpublicized forever. I might be wrong, and all three could be the brazen ideologues you suggest, but I’ll wait for confirmation from a source that has more credibility than Rolling Stone before I set my hair on fire.

          • I agree. If there were fire where this smoke is the legacy media would be all over it like white on rice. I think this is just a lot of unprovable hearsay. Scalia’s dead, so we’ll never know what he did or didn’t do behind the scenes. I’ve been before Alito, I just can’t see him as being so foolish as to do something like that, especially not now. Thomas? He didn’t get to be the senior justice by being an idiot. Another thing, these men are all Catholic, do you really think they’d pray with an evengelical Protestant outside of maybe some kind of ecumenical service? I doubt it. That said, yep, the justices are essentially untouchable. That’s why RBG could shoot off her mouth about Trump and not get slapped down by her chief.

            • Thomas? He didn’t get to be the senior justice by being an idiot.

              He got it by having a heartbeat for the past 30 years. His intelligence or lack thereof matters not at all for seniority since that based on, (say it with me,) seniority

          • Given that we don’t know the content of the alleged prayers, I’ll hold off on deciding whether it’s “WRONG” or not. I can think of many examples of prayers that wouldn’t be “wrong” for them to engage in, and many that would be, but the appearance of impropriety remains regardless of whether they were praying for a specific judicial outcome or for the Supreme Court cafeteria to have fish sticks that day.

            It sounds like you’re admitting that is is wrong and are looking for some oppositional defiant way out.

            It doesn’t matter what the alleged prayers were, it doesn’t matter if they got together and played Monopoly. If it creates the appearance of impropriety they’ve already screwed up.

            For reference. https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#c

            (B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.

            (Bolding mine)

            So we can hope the reporting is false, otherwise it’s a pretty big ethics breach.

  3. How is this different from people like Billy Graham praying with Presidents and others? Yes, in this day and age the optics are terrible (to some), but as you’ve argued in the past, judge the justices by their arguments for or against cases and whether the decisions are clearly animated by bias or law. Also, in fact, we have a majority of “Catholics” on the Court, and in government, who are all over the map in terms of how they interpret their beliefs in the context of how they govern.
    Conversely, should we also go after any existing groups (I don’t know of any, but as a hypothetical) which meet to discuss a progressive or atheist or other similar agenda, also within the Court? Meeting on government-paid time probably isn’t a proper thing in any case, but do we know that?
    Finally, if prayer is supposedly so lacking in efficacy, who cares, other than this confirming what we basically already know about how the various justices believe? Again, do their beliefs create a conflict of interest? That would sort of disqualify ALL of us from ever making judgments about anything — and there are those who do make that argument.

    • We’re getting hung up on the prayers. Ignore the prayers, this isn’t like Billy Graham praying with a president, this is like Bill Clinton talking to Loretta Lynch on the tarmac.

    • The Catholic church definitely says abortion is murder and should not be allowed. Realistically, (even as a conservative leaning protestant), seeing someone be a member of an organization that so clearly comes out against a practice, it is hard for me to think that the justices are not influenced at least somewhat by their religious beliefs.

      Imagine if Breyer, Kagan, and Sotomayor were members of the church of Satan, and the church of Satan actually did believe abortion was a religious ritual (vs what they are doing now, which is just playing games to try to win a lawsuit). Those of us more on the right would be skeptical of their impartiality.

      HOWEVER…

      Those who aren’t religious are also influenced by their secular belief that personhood isn’t even an issue until some arbitrary point of viability. The left also has a tendency to value human life much less than the right. Many of them want euthanasia to be available to anyone over 21. There are some tragic cases in European countries of very young adults legally having a doctor kill them. They weren’t terminal or anything like that.

      The left in this country also thinks people have the right to have consequence free sex. Let every 13 year old boy rejoice!

      So, we don’t have a “neutral” and a “religious” clash. Religion is just philosophy. We have competing philosophies. Neither side is approaching the issue without any philosophical baggage.

  4. I agree with Steve. This sounds fishy. Catholics go to church and attend mass. They don’t sit around reading the Bible and saying prayers. The only prayer I could see three Catholics engaged in would be saying the Rosary. You wouldn’t do that with a Protestant. They’re not real big on Mary. Catholics leave the praying to priests. In church.

    • Mostly. Many of us also pray on our own, but only privately. If some evangelist asked me to pray with them, especially if there were a lot of different folks involved, I’d do it to be polite, but I wouldn’t seek it out, there are just too many doctrinal differences (salvation through faith and works, transubtantiation,etc.).

  5. Umm…

    Sorry. No sale. I don’t believe this story is true. There is no doubt whatever in my mind Supreme Court justices understand the conflict of interest inherent in such activity. They are not stupid people.

    Fake news.

  6. And we hear virtually nothing as well that the Southern Poverty Law Center provided information/testimony to the January 6 hearing even though they have no direct knowledge of the events that day. Source: Politico

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