There was an extraordinary story this week out of Rolling Stone magazine, which breathlessly reported a “serious matter” of an allegation that Supreme Court justices prayed with evangelicals, including some associated with groups that filed amicus briefs with the Court. Many liberal sites went immediately into instant vapors at the thought of justices praying with such individuals, including the usual unhinged claims of ethical violations and renewed calls for everything from court packing to impeachments. What is clear is that the critics will require more than this “hope and a prayer” to achieve such ends.

Politics reporter Kara Voght wrote that Peggy Nienaber, vice president of the ministry group Faith & Liberty, admitted that she has prayed with Supreme Court justices in a video after the overturning of Roe v. Wade:

“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 figures whose bosses were bringing cases and arguments before the high court.”

The brief in question was on behalf of the National Hispanic Christian Leadership Conference, led by its President, Rev. Samuel Rodriguez; the Frederick Douglass Foundation, led by Chairman Dean Nelson; Rev. Alveda King, President of Speak for Life; Deacon Keith Fournier, Esq., of the Common Good Foundation; and the Roman Catholic Diocese of Tyler.

There is a reference to the brief in a footnote that raises a historical claim:

“Other amicus briefs present arguments about the motives of proponents of liberal access to abortion. They note that some such supporters have been motivated by a desire to suppress the size of the AfricanAmerican population. See Brief for African-American Organization et al. as Amici Curiae 14–21.”

After I challenged the claims last night, various people wrote to insist that this is a violation of “the separation of church and state” or clearly a violation of judicial ethics. It is neither.

First, thousands of groups and individuals participate in amicus or “friends of the Court” briefs every year. That does not make them parties in interest for the purposes of judicial ethics.

Almost 150 groups filed with the Court as amicus, including the U.S. Conference of Catholic Bishops. Six of the nine justices (Roberts, Thomas, Alito, Sotomayor, Kavanaugh and Barrett) are Catholic and pray every Sunday in the church with other Catholics. Is that unethical?

The outrage seems rather selection. I do not recall the Rolling Stone summing law professors to denounce Justice Sotomayor for calling for students to organize against abortion laws that might come before the Court.

Second, it is not even clear when or if such prayer occurred. Liberty Counsel’s founder, Mat Staver denies any knowledge of such sessions with the justices . Nienaber later stressed that her off-the-record

“comment was referring to past history and not practice of the past several years. 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.”

Voght quotes Rob Schenck, who originally founded the group and denounced the praying. However, he left the group in 2018 and said that he had no knowledge of such praying sessions. Nevertheless, Schenck declared “[t]o pray with the justices was to perform a sort of ‘spiritual conditioning.’ … 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 could also just be a prayer by religious people. It happens in hundreds of thousands of churches, synagogues, mosques, temples and public events around the world every day.

It is an ironic position since the Court just voted that a football coach has a right to pray after a game. Such prayer was rejected as a form of government speech or having any coercive impact on players. However, this would suggest that the justices themselves cannot ethically pray at any time with anyone who belongs to a group that might file with the Supreme Court, including the Catholic Church.

The article states

“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.” Simply as a factual matter, Nienaber insisted “I do not recall making such a statement. I listened to the livestream, and I did not hear such a statement…The public has not been allowed access, and I am no different. I will generally silently pray for the justices, their staff, and the Court.”

However, putting the facts aside, I am more interested in the take of Louis Virelli. a professor at Stetson University College of Law, who insisted that “Praying with a group that filed an amicus brief with a court is a problem.” It would seem to me that whether such praying is problematic would depend on the specifics. Generally praying with a group that is an amicus is not a problem. Otherwise, the attending of  Catholic services would be a problem for six out of the nine justices.

The “problem” would be joining a party to pray about the specific outcome of a case, which no one is suggesting occurred. Indeed, there is no indication that such prayers even occurred during the pendency of the case and no indication of what such prayers entailed in terms of the forum or the subject.

Indeed, at the end of the article, the author quotes Adam Winkler, a Supreme Court expert at the University of California Los Angeles, as noting that

“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.”

That objection to the constitutional views of the justices is a revealing conclusion to the article. While I understand Professor Winkler’s personal and intellectual objection to the outcome of these cases, it is an entirely unfair attack on the integrity of these six justices. They are not “reading their religion into the Constitution” by supporting prayer for all religions in the Kennedy decision or returning the question of abortion to the states in the Dobbs decision. One can clearly disagree with their constitutional interpretative approach, but they are applying a jurisprudential approach that is entirely unrelated to their personal faith.

So the Rolling Stone ran an article that unnamed justices may have prayed at some point with people associated with a group that has filed briefs with the Court. Putting aside the lack of essential factual foundation, there is no serious ethical breach raised by the article.

However, the article may have succeeded in uncovering for the first time in history what justices silently prayed for. They appeared to have collectively followed Voltaire’s advice: “I have never made but one prayer to God, a very short one: ‘O Lord make my enemies ridiculous.’ And God granted it.”