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Brett Kavanaugh’s Right to Dine Shall Not Be Infringed

Jack Holmes – July 8, 2022

Brett Kavanaugh was nominated to become a member of our nine-person SuperCongress by a president who took office despite earning the votes of millions fewer Americans than his opponent did. That president never enjoyed the support of a majority of citizens and got spanked in the popular vote by an even larger margin—7 million—in the next election. He then tried to overthrow the government to stay in power. Only one of the five other right-wing justices was nominated by a president who took office having secured the support of a majority of actual Americans.

Brett Kavanaugh was then confirmed by 50 senators who represented just 44 percent of the American population. The 48 senators who voted “nay” represented tens of millions more citizens. Kavanaugh secured the crucial 50th vote of Senator Susan Collins based on her publicly stated belief that he considered Roe v. Wade to be “settled legal precedent.” In the public hearings into the question of his confirmation, where he testified under oath, Kavanaugh said this:

Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

And as you well recall, senator, I know when that case came up, the Supreme Court did not just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor and Justice Souter, at great length went through those factors.

And then, a couple of weeks ago, Kavanaugh voted with the five other Republicans on the Court to overrule Roe v. Wade and Planned Parenthood v. Casey.

If you have a problem with any of this—unelected judges selected by presidents who got fewer votes and confirmed by senators who represent a minority of citizens making policy without regard for legal precedent or their own previous statements under oath—you don’t seem to have much recourse.

You can’t vote the superlegislators out. It is unreasonable to expect any will be impeached thanks to the entrenched advantages that allow Republicans outsize control of the Senate. Even the House of Representatives is dangerously skewed, thanks to gerrymandered redistricting maps and the hyperpolarization they help to generate. The reason Senate Republican leader Mitch McConnell and others worked so hard to seize control of the judiciary was precisely because so many other institutions have ceased to function properly. Even if you do succeed in electing representatives to make policy through the legislature—after this same Court savaged the Voting Rights Act and unleashed an avalanche of money in our elections—the courts can throw out whatever they choose.

You cannot protest at the steps of the Supreme Court, as they’ve walled that shit off. You can’t protest at the justices’ houses, and there’s some merit to the idea that private residences—where spouses and children are in the mix—should be off-limits. (Of course, in the case of Clarence Thomas, his spouse has very much been in the mix.) But you can’t protest in neutral public venues, either, even if you’re on a city street outside a restaurant. We learned that this weekend, when Mr. Kavanaugh was disturbed during a meal at a Washington, D.C. steakhouse, as reported by the Beltway encyclical known as Politico Playbook:

On Wednesday night, D.C. protesters targeting the conservative Supreme Court justices who signed onto the Dobbs decision overturning the constitutional right to abortion got a tip that Justice BRETT KAVANAUGH was dining at Morton’s downtown D.C. location. Protesters soon showed up out front, called the manager to tell him to kick Kavanaugh out and later tweeted that the justice was forced to exit through the rear of the restaurant.

We have returned, inevitably, to Red-Henghazi. Do public figures who make the rules we all have to live by get to do whatever they want at all times without any social repercussions? Do they have some right to privacy in public spaces, despite choosing to wield huge power over others in a democratic republic? Morton’s seems to think so.

“Honorable Supreme Court Justice Kavanaugh and all of our other patrons at the restaurant were unduly harassed by unruly protestors while eating dinner at our Morton’s restaurant. Politics, regardless of your side or views, should not trample the freedom at play of the right to congregate and eat dinner. There is a time and place for everything. Disturbing the dinner of all of our customers was an act of selfishness and void of decency.”

The right to eat dinner shall not be infringed. (Particularly by the Unduly Unruly.) Which, according to Politico‘s Daniel Lippman, it was not.

While the court had no official comment on Kavanaugh’s behalf and a person familiar with the situation said he did not hear or see the protesters and ate a full meal but left before dessert, Morton’s was outraged about the incident.

The right to tiramisu shall not be infringed. Seriously, though, at this point we’re talking about what appears to be a complete non-incident. He went out the back because he heard secondhand there were some folks out front?

But even if the honorable justice had to hear the urban rabble outside—described by Politico as “D.C. protestors”—tell him to fuck himself while he chowed down on a ribeye, what exactly is the problem here? The protesters are exercising their rights to speech and “peaceably to assemble, and to petition the Government for a redress of grievances.” Kavanaugh and the others may fashion themselves as blind arbiters of the law, but in reality they are agents of state power, representing the Government. And they have generated some grievances.

Meanwhile, we’re hearing about Brett the Honorable’s right to dine, what we can only assume is an unenumerated one under the Ninth Amendment. It also sounds more than somewhat related to the right to privacy—also rooted in the Ninth—which undergirded Roe and Casey before these six luminaries threw those decisions out. Justice Clarence Thomas has signaled they’re interested in going after the right to privacy itself with a so-called reconsiderationof Griswold v. Connecticut, a move that would go way beyond contraception. Although the prospect of this Republican Court empowering states controlled by their ideological allies to restrict women’s access to the pill in the Year of Our Lord 2022 does have a particular resonance.

And if that happens, you can expect the same bullshit routine from these same people. The work of working the refs is never done, and the self-victimization will never stop. This is the same impulse undergirding much of the Cancel Culture debate: while social-media mobs and a lack of due process are real problems, many of the fiercest Free Speech Warriors actually see free speech as their right to say whatever they want without getting criticized or made fun of. Similarly, these right-wing superlegislators believe they should be able to nakedly advance the policy priorities of the conservative movement by reverse-engineering decisions to meet preordained conclusions, all the while battering the lives of powerless people, without ever getting called an asshole while they drink a $300 bottle of wine. There are consequences for behaving badly in public office, at least until these people are finished savaging the foundations of this democratic republic. Or until the Democratic Party finds the stones to nix the Senate filibuster, expand the Supreme Court, reform the judiciary, and restore the people’s means of translating their will into the law we all are bound to live by.

Rolling Stone

SCOTUS Justices ‘Prayed With’ Her — Then Cited Her Bosses to End Roe

Kara Voght and Tim Dickinson – July 6, 2022

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.

More from Rolling Stone

• Texas’ Most Famous Abortion Provider Is Closing Its Doors
• The Worst Person You Know Just Made a Great Point: ‘Roe v. Wade’ Edition
• ‘My Abortion Saved My Life’: Halsey Talks Roe v. Wade, Motherhood in New Essay

In other words: Sitting Supreme Court justices have prayed together with evangelical leaders whose bosses were bringing cases and arguments before the high court.

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. 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.”

Nienaber intended her comments, broadcast on YouTube, to be “totally off the record,” she says in the clip. That’s likely because such an arrangement presents a problem for the Orlando-based Liberty Counsel, which not only weighed in on the Dobbs case as a friend of the court, but also litigated and won a 9-0 Supreme Court victory this May in a case centered on the public display of a religious flag.

The Supreme Court did not respond to a request for comment. 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.

Louis Virelli is a professor at Stetson University College of Law who wrote a book about Supreme Court recusals. He’s blunt in his assessment: “Praying with a group that filed an amicus brief with a court,” he says, “is a problem.”

In the shadow of the high court, across the street from its chambers, sits a cluster of unassuming row houses known only to the initiated as “Ministry Row.” The strip is host to evangelical political groups that have spent the past several decades pushing Beltway conservatives to embrace the religious right’s political causes — and, most of all, reverse Roe v. Wade. The street view offers few clues as to what transpires behind the painted brick facades, save for a granite slab inscribed with the Ten Commandments planted in the grassy patch before a modest cream-colored Victorian with maroon trim.

The home serves as Faith & Liberty’s headquarters. The Ten Commandments statue had been placed there by Schenck, an evangelical minister famous for orchestrating high-profile anti-abortion stunts, such as shoving an aborted fetus in a plastic container into the face of former President Bill Clinton during the 1992 campaign. Schenck had opened the ministry in the 1990s as Faith and Action in the Nation’s Capital, a nonprofit dedicated to ending federal abortion rights. The organization operated on a “utopian ‘trickle-up’ theory” of influence: building access “higher and higher up within the government, until we got to the top, my ultimate target — members of Congress, U.S. senators, cabinet secretaries, Supreme Court justices — even presidents,” Schenck wrote in his 2018 autobiography.

The group established a strong foothold in both chambers of Congress and, eventually, the White House. But Faith and Action ultimately directed its energies toward the judicial branch. “There were no pro-life groups directly approaching the judges and justices, who shaped abortion law simply by their precedent-setting decisions,” Schenck wrote. “We knew we were stuck with members of the federal bench — they were appointed for life — so why not convert them while in office?” (Schenck has since reversed course: He is now a fierce critic of evangelical politicking and says Liberty Counsel assumed Faith and Action’s operations in 2018. He says he has no knowledge of the group’s inner workings after he left.)

At first, the high court regarded Faith and Action and its peer organizations as nuisances, according to Schenck. “Justice Thomas would say to me, ‘You know those groups outside? Are they crazy or are they good people?’” Schenck recalls in an interview with Rolling Stone. When Schenck first began his approach in 1994, prayer activities on the Supreme Court’s property was considered an act of demonstration, and therefore illegal. Eventually, Justices Alito, Scalia, and Thomas would embrace Schenck, he says, and pray with him in various corners of the high court’s grounds — including, occasionally, in their chambers. (Chief Justice John Roberts, meanwhile, remained more guarded and skeptical of such groups’ influence.)

To pray with the justices was to perform a sort of “spiritual conditioning,” Schenck explains. “The intention all along was to embolden the conservative justices by loaning them a kind of spiritual moral support — to give them an assurance that not only was there a large number of people behind them, but in fact, there was divine support for very strong and unapologetic opinions from them.” Prayer is a powerful communication tool in the evangelical tradition: The speaker assumes the mantle of the divine, and to disagree with an offered prayer is akin to sin. “It’s just not common to interrupt or challenge a prayer,” Schenck explains. “That’s not something a devout Supreme Court justice would ever consider doing.” That was true even for the devout Catholic justices, such as Scalia, who joined the evangelical Faith and Action members in prayer, Schenck says.

Sometimes the prayers would be general; other times, on specific subjects, such as ending abortion, according to Schenck. He says Faith and Action took assiduous care to avoid speaking blatantly about cases in the Supreme Court’s pipeline, discussing the political agenda only in broad strokes. Even so, under the time period Schenck describes, prayers with the justices occurred as Faith and Action signed onto several amicus briefs for landmark SCOTUS cases such as Gonzales v. Planned Parenthood, which ultimately upheld the Partial-Birth Abortion Ban Act of 2003.

Schenck walked away from his life on the Hill after receiving a late-career doctorate on the teachings of Dietrich Bonhoeffer, the German pastor who questioned the collaborative relationship between Adolf Hitler and 1930s German evangelicals. He drew parallels between the Republican Party and American evangelicalism, concerned that he’d weaponized worship to fuel a hate-filled agenda. No longer an anti-abortion activist, Schenck views his past efforts with regret. “Prayer is a positive exercise, until it’s politicized — and too many prayers that I and my colleagues offered in the presence of the justices were political prayers,” he explains. He also believes the work “contributed to the internal moral and ethical corruption of the justices at the court,” he says.

“I was sure, while we were doing it, it would be a positive contribution to our public life,” Schenck says. “It didn’t have the effect I thought it would. In some ways, it set the stage for the reversal of Roe, which I now think of as a social catastrophe.

When Liberty Counsel absorbed Faith and Action in 2018, Peggy Nienaber, who had worked alongside Schenck since at least 2005, continued with the group. In a July 2021 conversation with Staver, Liberty Counsel’s founder, Nienaber described the group’s new incarnation as similar to Faith and Action’s mission. It’s “the ministry right here on Capitol Hill,” she said, devoted to “changing the hearts and minds of not only our elected officials, but the staffers all the way down.” Nienaber highlighted Faith & Liberty’s proximity to the court by pointing to the window of the conference room where the justices decide their cases. ”When you’re sitting in that conference room, you cannot miss those Ten Commandments,” she said. (Faith & Liberty sits so close to the Supreme Court, in fact, that it has been included in the “buffer zone” surrounding the high court, shut off to protesters and the public. There’s irony here, given that Liberty Counsel has for decades  litigated to abolish buffer zones near abortion clinics.)

“There’s a lot of things that Faith & Liberty does — and that you do — that obviously we can’t put in an email, can’t put in a newsletter, can’t put in a press release,” Staver said to Nienaber during their chat, “because it’s private relationships that are spiritually transformative.” Nienaber’s social media accounts show her hobnobbing with high-profile Republicans such as Sen. Lindsay Graham (R-S.C.) and former Vice President Mike Pence. She hung close to the confirmation of Justice Brett Kavanaugh in 2018: She posted photographs from inside the Senate Judiciary Committee’s hearing room, as well as a screenshot of her invitation to Kavanaugh’s swearing-in ceremony.

Nienaber told Rolling Stone, “I do not socialize with the justices.” Yet she has posed for photos with Justices Kavanaugh and Thomas, calling the latter a “friend” in a Facebook post, praising him for “passing by our ministry center to attend church and always taking time to say hello.”

In addition to her proximity to conservative power players, Nienaber has championed the plaintiffs who have brought right-wing religious causes before the Supreme Court. Ahead of oral arguments, she prayed with Joe Kennedy, the football coach who recently succeeded in his suit to allow prayer during football games. Liberty Counsel also filed an amicus brief in that case, calling on the court to rule that the school district “engaged in viewpoint discrimination against Coach Kennedy’s private speech.”

Nienaber was recorded telling the livestreamer that she prayed with Supreme Court justices on June 27, the Monday after the high court issued the Dobbs ruling. She was at a celebration she helped organize with Sean Feucht, a prominent Christian-worship musician. Nienaber identifies herself only as “Peggy” in the footage, but she references the ministry she runs behind the court and its 850-pound replica of the Ten Commandments. For most of the interview, Nienaber is not on camera. But when the video pans on her briefly, she can be seen wearing the same dress and necklace she has on in a selfie with Feucht posted to Faith & Liberty’s website.

Last week, Rolling Stone spoke to Patty Bills, the director of constituency affairs at Faith & Liberty. Bills did not want to discuss Faith & Liberty’s ministry practices, citing privacy concerns. Bills would not, however, deny that Faith & Liberty ministers to Supreme Court justices. “I never said we didn’t — I just said we provide privacy,” she said.

Staver, in denying that members of Faith & Liberty prayed with Supreme Court justices, says that such prayers would have been inappropriate, especially given Liberty Counsel’s litigation efforts. “That’s why we wouldn’t do that,” he says. “And especially on cases that are pending before the Supreme Court, we would make a very clear firewall. We just would never do something like that.”

In a written statement to Rolling Stone, Nienaber says of her hot-mic comments: “I do not recall making such a statement. I listened to the livestream, and I did not hear such a statement.” She adds that Covid restrictions have limited public access to the Supreme Court: “The public has not been allowed access, and I am no different.” When she has had access to public areas of the court, she says, “I will generally silently pray for the justices, their staff, and the Court.”

But after this story was published, Nienaber acknowledged her remarks and conceded she has prayed personally with Supreme Court justices. Despite speaking in the present tense on the livestream, Nienaber asserted, “My comment was referring to past history and not practice of the past several years.” Nienaber added: “During most of the history up to early 2020, I met with many people who wanted or needed prayer. Since early 2020, access to the Supreme Court has been restricted due to COVID. It has been many years since I prayed with a Justice.”

Liberty Counsel was founded in 1989 by Staver. The organization is an uncommon hybrid of religious ministry and legal practice, dedicated to “advancing religious freedom, the sanctity of human life and the family through strategic litigation.” Staver is the organization’s senior pastor as well as its top litigator. This mix of law and religion is central to Staver’s career; he previously served as dean of the law school at Liberty University, founded by the televangelist Jerry Falwell.

Staver has argued numerous cases in front of the Supreme Court. He started in 1994 in a case that struck a blow against protest-limiting buffer zones near abortion clinics. In the court’s most recent term, Staver argued and won a 9-0 judgment in Shurtleff v. Boston, a case in which the court ruled a Christian flag couldn’t be excluded from a public flagpole that displayed a rotating assortment of secular flags.

Staver also wrote an amicus brief in the Dobbs case that purports to tie abortion and birth control to eugenics. Calling Roe “the low watermark in this Court’s history,” it argued that Dobbs was ”an ideal vehicle for the Court to finally overrule Roe v. Wade and its progeny, which have constitutionalized eugenic abortions as a fundamental right.”

In the Dobbs majority opinion written by Justice Alito, he cited this brief to impugn the motives of pro-abortion-rights advocates, arguing that “some such supporters have been motivated by a desire to suppress the size of the African American population,” adding, “it is beyond dispute that Roe has had that demographic effect,” because “a highly disproportionate percentage of aborted fetuses are Black.”

When Roe v. Wade was reversed, Staver was triumphant: “I have dedicated my life to defend life and overturn the bloody decisions of Roe v. Wade and Planned Parenthood v. Casey,” he wrote. “This global earthquake will impact the world.”

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.

But even among legal experts troubled by the court’s ties, they acknowledge there are few remedies to address ethical conflicts. A federal statute governs when judges and justices should step away from cases, but the Constitution leaves questions of partiality to the justices themselves. Their general unwillingness to step aside isn’t necessarily a bad thing, Virelli, the Stetson law professor, says: When justices recuse themselves from a case, no one replaces them, a scenario that can create more problems than it solves. “The court changes shape,” he explains. “That makes the decision to recuse difficult.”

That the justices are their own keepers in regard to those rules creates complications, however, says Steve Vladeck, a constitutional-law expert at the University of Texas Law School. The relationship between Faith & Liberty and Liberty Counsel, as described by Rolling Stone, “could make a reasonable observer worry about the appearance of partiality,” he says. But the concerns the scenario raised shouldn’t be about recusal. “What that really reveals is how problematic it is that there isn’t an objective mechanism to resolve these sorts of questions.”

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.”