Thanks for All the Fish

Late Tuesday, ProPublica, the same nonprofit news organization that broke the story about Justice Clarence Thomas accepting stuff he shouldn’t have from a billionaire he became friends with only after he became a Supreme Court justice, put the spotlight on Justice Samuel Alito. If you were shocked by the Thomas story, you’ll be outraged by the report on Alito.

Let’s start with the headline: “Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court.”

Here’s the photo that goes along with it.

Sam Alito, like the other associate justices on the Supreme Court, makes $285,400 a year. That would be a gracious plenty for most people to live and vacation on. But Justice Alito took a little assist. He is pictured with Republican megadonor Paul Singer, on his left in this photo of them at a luxury fishing lodge in Alaska that cost about $1,000 per day. Singer, a hedge fund billionaire, has had cases in front of the Supreme Court and been involved in filing amicus briefs in the years since 2008, when this photo was taken. Justice Alito has never recused.

The reason that’s shocking is because Singer gave Alito a lift to Alaska on a private jet that, ProPublica reports, could have cost more than $100,000 each way if Alito had paid for the charter himself. But he didn’t. Instead, he accepted the favor and later participated in deciding the cases. Alito and Singer do not appear to have known each other before the trip.

Alito didn’t report the trip as a gift on his annual financial disclosures, one of the only ethics requirements imposed on Supreme Court justices, who are largely left to decide what’s ethical and what isn’t on their own, with no accountability. ProPublica consulted ethics experts who said Alito’s failure “appears to have violated a federal law that requires justices to disclose most gifts.” What stands out here is the acceptance of a very expensive gift, not disclosed, followed by the justice continuing to decide cases where the gift-giver has a stake. Even under the generous reading of the post-Watergate laws that the justices seem to give to the law that requires them to make disclosures, Alito’s failure with regards to the plane trip is a violation.

Who is Singer? According to ProPublica, he has contributed over $80 million to Republican political groups in the past decade. He has chaired the Manhattan Institute, a conservative think tank, since 2008 and has given millions of dollars to support its work. Here’s where it gets interesting: The institute files amicus briefs with the Court regularly, including 15 this term, on issues that matter to its conservative agenda.

Here’s the money quote in ProPublica’s reporting:

Justice Alito also accepted a complimentary stay at the lodge from its owner, Robin Arkley II. Arkley is a wealthy businessman in his own right, the owner of a mortgage company. Multiple sources confirmed to ProPublica that Alito was Arkley’s guest at the lodge, and that he didn’t pay for anything during his stay.

Leonard Leo, the founder of the conservative Federalist Society, organized the trip and arranged for Alito’s flight on Singer’s plane. There was a web of interconnection among the men: Leo had recently played a role in Alito’s confirmation, by a 58–42 vote, in January 2006; both Singer and Arkley were contributors to Leo’s political groups.

In a statement, Leonard Leo declined to comment on the trip but said he “would never presume to tell” Alito and Justice Antonin Scalia, whose trips he’d also been involved in, “what to do.” And isn’t that the whole point? He didn’t have to. They knew what was expected. Or at least it looks that way, which is just as damaging to the Court and the country.

You should read the full piece in ProPublica for yourself, but it’s lengthy, so we’ll hit the high notes here tonight in case you need to save it for the weekend. Suffice it to say, this reporting dramatically increases concerns about the Court’s legitimacy. My friend and colleague Barb McQuade put it best: “Pro tip: If you’re a Supreme Court justice, don’t take free trips, even when the seat on the billionaire’s private plane would ‘otherwise go unoccupied.’ Normal people don’t get free fishing trips to Alaska. It is not your winning personality that makes you different.”

ProPublica reached out to Alito last week for a comment in advance of publication. The Supreme Court’s head spokesperson told them Alito would not comment on Tuesday. Then, just two hours later, Alito published under his own byline a prebuttal to ProPublica’s not-yet-published story on the opinion page of the Wall Street Journal. It’s titled, “Justice Samuel Alito: ProPublica Misleads Its Readers.” The deck reads, “The publication levels false charges about Supreme Court recusal, financial disclosures and a 2008 fishing trip.”

Alito’s defense comes down to hard-to-believe disclaimers about the relationship (pretty sure you’d remember someone who took you on this splendid trip and know where they worked), and also the insinuation that he never ruled in favor of the friend who provided him with “personal hospitality”—the dodge justices use when they don’t want to report trips. And that begs the real question: Why not just include the gifts in your financial disclosures? If there’s nothing wrong with taking the trip, there should be nothing wrong with disclosing who paid for it. It’s always the cover-up!

Alito’s claims in the Journal include:

• He was unaware of Singer’s connection to cases where his companies came before the court.

• He recalled speaking to Singer on “no more than a handful of occasions.” Also, he says they never discussed Singer’s business or issues before the court.

• He also suggests the trip was okay because the seat on the flight “​​would have otherwise been vacant.”

I’ll leave it to you to assess those claims for yourself. But as every judge and lawyer and presumably even any justice know, protecting the integrity of the courts is about more than just actual impropriety. Lawyers are schooled to avoid even the appearance of impropriety in their conduct. And there’s absolutely no one who looks at a year’s-income–expensive vacation and thinks, “Sure, nothing wrong with that. I’m sure the justice wasn’t influenced in any way.”

Alito also deemed his failure to report acceptable because the justices “commonly interpreted” the disclosure rules in a way that meant they didn’t have to include payment for “accommodations and transportation for social events.” I guess that means all of the Biden-appointed judges are free to fly to Rome for a fancy trip on someone else’s nickel. Oh wait, no. That was Alito, too, last summer. Not sure whether he reported that one, but it was to give a keynote address to a group put together by Yale Law School at an event on religious liberty, so at least it wasn’t personal pleasure travel. As Dahlia Lithwick and Mark Stern noted at the time, “For starters, there is the breathtaking conflict of interest at work when a justice gives faith-based speeches at faith-based events sponsored by faith-based parties who file briefs before the court.” No word on why the conference had to be held in Rome, but presumably South Bend, Indiana, did not suffice.

The culture at the Court is not strong in the sense that it wholly fails to appreciate how all of us mere mortals view the justices’ failures to disclose: as efforts to avoid the accountability required of any other federal employee. The justices are so removed that they are unaware, or perhaps simply don’t care, that it damages not only their individual reputations but the reputation of the court and public confidence in the rule of law. It is a sick irony that the people who tell others how to resolve their most difficult disputes fail to see how serious their own issues have become. They have done nothing to rectify past errors, take responsibility for them, and move forward on a better path.

ProPublica’s reporting does a marvelous job of chronicling the path forward for the participants in the 2008 fishing trip, though. The timing, the participants, and the detail of just how lush the 2008 trip was—you really should read the full article for yourself when you have time. It also details Singer’s aggressive litigation strategies in cases, including a remarkable one concerning the role of one of his funds in buying up Argentine debt during the country’s 2001 economic crisis. He aggressively took advantage of the country’s misfortune, going so far as trying to seize a naval vessel to satisfy debts after the immediate issues had passed, with most creditors having long ago settled with the government for a fraction of the debt’s original value.

Predictably, Singer’s litigation ended up in front of the Supreme Court, and Alito was part of a 7-1 majority that ruled in his hedge fund’s favor. In other words, Alito wasn’t the deciding vote. But that doesn’t do anything to ameliorate the ethics concerns. No one could have known how the decision would come out at the time he chose to withhold information about who was funding his fishing trips from the public.

Singer’s fund made $2.4 billion as a result of the Supreme Court’s ruling.

Alito was introduced by Singer when he spoke at the annual Federalist Society dinner the year after their fishing trip.

ProPublica concludes: “Chief Justice John Roberts has not directly addressed the recent revelations. In fact, he has repeatedly suggested Congress might not have the power to regulate the court at all.” Democratic Senators have held hearings, but no firm proposals have emerged. Alito clearly believes that since Thomas skated, he can skate, too. Who loses from their misbehavior? The Constitution they took an oath to uphold, and all of us.

We’re in this together,

Joyce

Chaser: Justice Antonin Scalia also took trips “with” Arkley.

ProPublica says Scalia did not report the one pictured above, which was to Alaska. “Scalia’s travels briefly drew scrutiny in 2016 after he died while staying at the hunting ranch of a Texas businessman. Scalia had a pattern of disclosing trips to deliver lectures while not mentioning hunting excursions he took to nearby locales hosted by local attorneys and businessmen, according to a research paper published after his death.” There seems to be a pattern here.