June 27, 2023

Samuel Alito

Conservative U.S. Supreme Court Justice Samuel Alito has acknowledged taking a private jet to Alaska for a luxury fishing trip in 2008 but defended his failure to disclose the flight provided by a billionaire hedge fund manager whose business interests have come before the court…

“Alito wrote a commentary published in the Wall Street Journal late [last] Tuesday defending his conduct hours before news outlet ProPublica published an article raising questions about the justice's failure to report the trip with Paul Singer on mandatory financial disclosure forms or recuse from cases involving Singer's business.” Reuters

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From the Left

The left is critical of Alito’s conduct and urges the Supreme Court to adopt stronger ethics rules.

“Alito defends his non-disclosure by invoking the well-worn ‘personal hospitality’ exception. The reporting requirement in force in 2008, he says, excepted all ‘accommodations and transportation for social events,’ although it was recently clarified to require greater disclosure. In fact, the 2008 hospitality exclusion applied only to food, lodging and entertainment, with no mention of transportation…

“Alito can argue the finer points of disclosure and recusal, but there is a greater issue involving the justices’ ready acceptance of lavish gifts from wealthy and politically active benefactors. Alito and Thomas, and perhaps others yet unknown, have not hesitated to vacation on the tab of the super-rich, rationalizing that they avoid talking law with their hosts, who, they assure themselves, do not have cases before the Court…

“But influence does not arise only from outright favor-trading… Studies have shown that physicians’ prescribing practices can be influenced by such minor gifts as pens, notepads and sandwiches. One study of over 125,000 physicians found that receipt of a single inexpensive meal was associated with increased prescriptions of the donor’s brand-name medication. Supreme Court justices no doubt believe they are immune to such effects, but so do doctors.”

Steven Lubet, The Hill

“Can anyone say with a straight face that no ‘unbiased and reasonable person’ would question the justice’s impartiality when he votes for someone who gave him a valuable gift? Isn’t there at least the appearance that something other than the strict application of the rule of law is at work? And appearances count, perhaps nowhere more than at the Supreme Court, which is the final arbiter of many of the most fraught issues of American life

“If the justices are confused as to the reason public trust in the court is in free fall, they need look no further than Justice Alito’s smug, defensive reaction to a very fair criticism. As long as the court refuses to accept significantly stricter ethics rules, either adopted by themselves or imposed by Congress, that trust — and with it the court’s legitimacy — will continue to erode until it’s not worth a seat on a private jet.”

Jesse Wegman, New York Times

“ProPublica’s reporting hints at the larger scandal of conservative donors becoming financially enmeshed with the justices they sponsor. Alito’s stay at the resort ‘was provided free of charge by another major donor to the conservative legal movement: Robin Arkley II,’ it reports…  

“And Singer’s Supreme Court case ‘featured an unusual intervention by the Judicial Crisis Network, a group affiliated with [Leonard] Leo known for spending millions on judicial confirmation fights. The group filed a brief supporting Singer, which appears to be the only Supreme Court friend-of-the-court brief in the organization’s history.’…

The whole arrangement is highly convenient for the right: The conservative legal movement has seized unassailable control of the Supreme Court and its members are so deeply invested in the goals and worldview of the conservative movement and its donors that the component parts can hardly be separated. The most powerful body in the government happens to be the one that is allowed to follow the most lax ethics requirements.”

Jonathan Chait, New York Magazine

From the Right

The right argues that Alito did nothing wrong and accuses ProPublica of bias.

The right argues that Alito did nothing wrong and accuses ProPublica of bias.

“Alito did not report the flight on his financial-disclosure forms, but as he noted in his Wall Street Journal op-ed, the rules until very recently were uniformly understood not to require any such disclosures… Judge A. Raymond Randolph, who was on the same fishing trip, told ProPublica that he sought disclosure advice at the time of a prior, similar trip and concluded that the trip didn’t require disclosure…

“Between 2004 and 2018, just counting the trips that were covered by the disclosure rules, justices disclosed taking 1,306 trips that had been reimbursed by others… Six of the Supreme Court’s nine members received paid trips to Europe in 2014, including to Berlin, London and Zurich — and ‘New York University also paid for Sonia Sotomayor and Ruth Bader Ginsburg to travel to Florence, Italy.’ In 2012, ‘Ginsburg traveled to New York to accept Glamour Magazine’s Woman of the Year award, which came with a gift bag valued at $2,500.’…

“The one case involving Singer’s litigious hedge funds that made its way before the Court on its merits was Republic of Argentina v. NML Capital, a 2014 Foreign Sovereign Immunities Act case involving Argentine sovereign debt. The case wasn’t close; the Singer-related fund won 7–1… Moreover, even if Alito should arguably have recused himself for all time from Singer-related cases, the court papers in the case also didn’t disclose — and weren’t legally required to disclose — that the NML Capital fund was a Singer vehicle.”

Dan McLaughlin, National Review

“ProPublica and other captive outlets of the Democratic Party are doing whatever they can to create ‘scandals’ around the Supreme Court. It’s not that they expect any particular faux-scandal to stick, but they hope that raising one after another will create a generalized perception that the court is corrupt, and its decisions — say, overturning affirmative action, or upholding gun rights — will thus be delegitimized, making it easier for Democratic officials to disobey them…

“At the same time, the ‘ethics’ attacks on the court serve as a smokescreen to conceal the much bigger ethical problems that go unaddressed. ProPublica, for example, crusades against fully publicized matters like Alito’s trip, even as it rakes in millions of dollars from undisclosed donors. Per the Washington Free Beacon: In 2020 and 2021, ‘ProPublica accepted $6.3 million from anonymous donors, and a quarter of the group’s revenues in 2022 came from two unnamed donors.’”

Glenn H. Reynolds, New York Post

“If we are supposed to assume that casual exposure to billionaires is inherently corrupting, what does it say about ProPublica that its funding comes from organizations like the Sandler Foundation? That institution, which was described by Forbes magazine as having ‘instituted borrowing practices that were largely blamed for the housing market collapse’ in 2008, also financially supports the left-wing group Demand Justice, which advocates packing the Supreme Court…

“This would be a shoddy indictment of ProPublica if it were the only prism through which we viewed its work. It is an exercise aimed at establishing guilt by association. But that is precisely the enterprise in which ProPublica is engaged… The Wall Street Journal editorial page deserves commendation for attempting to break the rhythm of this tawdry onslaught of defamation and agitation. Others should follow its lead.”

Noah Rothman, National Review

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