Judge Samuel A. Alito Jr. took the unusual step late Tuesday of responding to questions about his travels with a billionaire who often has Supreme Court cases hours before an article about their ties was even published.
In an extraordinary salvo on a favorite forum, Judge Alito defended himself in a preemptive article in the op-ed pages of The Wall Street Journal before the news organization ProPublica posted its account of a 2008 luxury fishing trip.
His response comes as the judges are under increasing scrutiny of their ethical obligations to report donations and to withdraw from cases involving their benefactors. The latest revelations will certainly reinforce the call for stricter ethical rules.
The judges have taken different approaches to explain their actions and protect their institution. Judge Clarence Thomas has been largely silent in the face of revelations of gifts from Harlan Crow, a wealthy Republican donor. Chief Justice John G. Roberts Jr. turned down an invitation from Congress to testify about the court’s ethical practices and made vague statements about its approach.
And Justice Alito has come out swinging.
The ProPublica article was about a trip Justice Alito took to a remote part of Alaska, arriving on the private jet of Paul Singer, an immensely wealthy hedge fund manager and Republican donor. The flight would have cost more than $100,000 one way had the Justice Department chartered it itself, the outlet estimated, and its annual disclosures make no mention of the trip, in what many legal ethics experts say was a violation of federal law. . In subsequent years, Mr. Singer’s companies were parties to a number of Supreme Court cases in which Judge Alito participated.
ProPublica had sought comment from the justice department, who instead turned to The Journal to make two key points: that he was under no obligation to withdraw from those cases or disclose the trip.
Judge Alito said he had spoken to Mr. Singer only a few times, including twice when Mr. Singer introduced the judge to the speeches. “It was and is my judgment that these facts would not cause a reasonable and unbiased person to doubt my ability to decide impartially the issues at stake,” Judge Alito wrote.
He added that he was unaware of Mr. Singer’s connection to the court cases, including one in which the court reached a 7-to-1 decision in favor of one of Mr. Singer’s companies, with Judge Alito in the majority.
But Mr. Singer’s connection to the case, Republic of Argentina v. NML Capital, was widely reported. A Forbes article about the decision was headlined “Supreme Court Gives Billionaire Paul Singer Victory Over Argentina.” An article in DailyExpertNews noted that among the parties to the case was “NML Capital, a subsidiary of Elliott Management, the hedge fund founded by Paul Singer.”
Justice Alito said he was under no obligation to disclose the trip on Mr Singer’s private jet in “a seat that, to my knowledge, would otherwise have been empty”.
A federal law requires disclosure of gifts above a certain value, but makes exceptions for “personal hospitality of a person” in “that person’s or his family’s personal residence or on property or facilities owned by that person or his family.” Judge Alito wrote that a jet is such a facility and quoted from dictionary definitions.
In March, the United States Judicial Conference, the governing body for federal courts, issued new guidelines requiring disclosure of private jet travel and stays at commercial properties such as resorts.
After ProPublica announced that Judge Thomas had taken a series of lavish vacations paid for by Mr Crow, including extended stays on Mr Crow’s yacht, the judge said he would abide by the revised rules. Justice Thomas justified accepting the trips because of what he said was his close friendship with Mr. Crow.
In his essay, Judge Alito challenged the idea that the fishing trip was particularly posh and ProPublica’s account of extravagant meals topped with expensive bottles of wine. “I stayed three nights in a modest one-room unit at the King Salmon Lodge, a comfortable yet rustic facility,” he wrote. “As far as I remember, the meals were home-cooked. I don’t recall if the group at the lodge, about 20 people, were served wine, but if there was wine, it certainly wasn’t wine that cost $1,000.
Among those who helped organize the trip, according to ProPublica, was Leonard Leo, a longtime leader of the Federalist Society, the conservative legal group, who also attended. In a statement to ProPublica, Mr. Leo wrote that judges across the ideological spectrum had received hospitality from friends and supporters and their judicial work had remained unaffected.
“We should all be asking ourselves if this recent spate of ProPublica stories questioning the integrity of only conservative Supreme Court justices is bait to bring in more shady money from awakened billionaires who want to harm this Supreme Court and make it one who will ignore the law by stamping their disordered and deeply unpopular cultural affiliations,” said Mr. leo.
Judge Alito seems to have a good relationship with the opinion pages of The Journal, which published an extensive interview with him in April.
He said at the time that he was disappointed lawyers had not come to the defense of the court, which has come under increasing scrutiny for what critics say are serious ethical errors.
“This kind of joint attack on the court and on individual judges,” he said, “is new in my lifetime.”
He added: “The idea has always been that judges are not supposed to respond to criticism, but if the courts are unfairly attacked, the organized bar will defend them.”
Instead, Judge Alito said, “They participated, at least to some degree, in these attacks.”
A few days before Politico last year published a leaked draft of Justice Alito’s majority opinion overturning Roe v. Wade, an editorial in The Journal hinted at court tensions that appeared to be based on insider information.
The author of the majority opinion was not yet publicly known. “Our guess,” the editorial said correctly, was that it would be Justice Alito.
Recent revelations have highlighted how few disclosure requirements there are and how the judges themselves are often left to the police.
Gabe Roth, executive director of Fix the Court, an advocacy group pushing for more openness at the Supreme Court, said it needed an ethics review. “The public may expect Supreme Court justices to be ethical examples of all people,” he said, “but the Nine have consistently shown themselves to fall short in this regard.”
Last month, the chief justice said the court wanted to hear the case, even as he suggested Congress was unable to act under the Constitution’s separation of powers.
“I want to assure people that I am committed to ensuring that we as a court live up to the highest standards of conduct,” he said. “We continue to look at things we can do to practically deliver on that commitment.”