Justice Samuel Alito published an op-ed Tuesday pushing back against a report suggesting he’s behaved improperly with respect to gift disclosure rules and recusal norms.
On Wednesday, the investigative website ProPublica published a piece about a trip Alito had taken to Alaska alongside Paul Singer, the American hedge fund manager. The piece suggested that Alito’s air travel to Alaska and activities during the trip ought to have been reported and that Alito should have recused himself in a case that Singer was connected to.
After the ProPublica reporters reached out for comment, Alito published his response in a Wall Street Journal op-ed, arguing “neither charge is valid.”
According to Alito, recusal in that case would not have been required or appropriate. Alito argued that his actions weren’t improper under Chief Justice John Roberts’s assertion that “there is an appearance of impropriety when an unbiased and reasonable person who is aware of all relevant facts would doubt that the Justice could fairly discharge his or her duties.”
“No such person would think that my relationship with Mr. Singer meets that standard. My recollection is that I have spoken to Mr. Singer on no more than a handful of occasions, all of which (with the exception of small talk during a fishing trip 15 years ago) consisted of brief and casual comments at events attended by large groups,” argued Alito, explaining he has never discussed business dealings or cases before the Court with Singer.
Alito said he has voted on 100,000 certiorari petitions during his time on the Court and that his staff check the names of the parties in each case and any other entities listed in the corporate disclosure statement. Most of the cases in which Singer had a connection were not taken up by the Court and in the one that was taken up — Republic of Argentina v. NML Capital, Ltd — Singer’s name did not appear on the relevant court records, Alito said. He also noted that it would be impossible for Court clerks to dig through the records of every corporation with business before the court to determine which individuals had connections to those companies.
“Justice Alito did not know Paul Singer had interests in the cases cited by ProPublica because Singer’s name does not appear anywhere in court records or documents. You cannot possibly provide special treatment or favor to someone if you don’t know they are involved in a case,” Federalist Society co-chairman Leonard Leo said in a statement issued in response to the ProPublica article.
Alito also noted that until recently, the rules held that “personal hospitality need not be reported.”
“When I joined the Court and until the recent amendment of the filing instructions, justices commonly interpreted this discussion of ‘hospitality’ to mean that accommodations and transportation for social events were not reportable gifts,” explained Alito. “The flight to Alaska was the only occasion when I have accepted transportation for a purely social event, and in doing so I followed what I understood to be standard practice.”
The justice called the portrayal of the trip’s details to be “misleading” and intended to make it appear more lavish than it was. As to the flight, Alito noted the seat would have otherwise been vacant and he did not occupy it at any cost to Singer. “Had I taken commercial flights, that would have imposed a substantial cost and inconvenience on the deputy U.S. Marshals who would have been required for security reasons to assist me,” Alito explained.
The ProPublica piece on Alito suggests impropriety in the same way it did against Justice Clarence Thomas, who had a friendship with businessman Harlan Crow. Bloomberg reported Crow had a case before the Court at one point, but the connection to Crow was similarly removed.
Senate Democrats are currently locked in a dispute with Crow’s attorney over whether he must send a list of all gifts, defined broadly, that he has sent to the justices. “Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court. Doing so would exceed Congress’s Article I authority and violate basic separation of powers principles,” wrote Crow’s attorney in response to the request.
The caucus is more broadly trying to push an ethics code upon the justices. Legislation has been introduced and separately, using Congress’s power of the purse has been considered. Republicans have decried these efforts, especially considering increased threats against the justices and the increased security those threats have resulted in.
“We can talk about ethics and that’s great, but we’re also going to talk about a concentrated effort by the left to delegitimize this court and to cherrypick examples to make a point,” Judiciary committee ranking member Lindsey Graham (R., S.C.) said in May. “This is about destroying a conservative court.”