ProPublica vs Alito
The Justice responds to ethics charges.
The gang at ProPublica published a piece just before midnight headlined “Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court.” They apparently emailed him asking for a response, which he instead sent to WSJ as an open letter/op-ed which they published under the headline “Justice Samuel Alito: ProPublica Misleads Its Readers.”
Alito begins,
ProPublica has leveled two charges against me: first, that I should have recused in matters in which an entity connected with Paul Singer was a party and, second, that I was obligated to list certain items as gifts on my 2008 Financial Disclose Report. Neither charge is valid.
He goes into great detail on both and I find his response mostly credible.
On the most serious charge, that he should have recused himself from a Republic of Argentina v. NML Capital (2014), Alito retorts,
Mr. Singer’s name did not appear in either the certiorari petition, the brief in opposition, or the merits briefs. Because his name did not appear in these filings, I was unaware of his connection with any of the listed entities, and I had no good reason to be aware of that. The entities that ProPublica claims are connected to Mr. Singer all appear to be either limited liability corporations or limited liability partnerships. It would be utterly impossible for my staff or any other Supreme Court employees to search filings with the SEC or other government bodies to find the names of all individuals with a financial interest in every such entity named as a party in the thousands of cases that are brought to us each year.
That seems perfectly reasonable to me. Either Alito is telling a bald-faced lie on a matter that’s easily checked, which seems unlikely, or it would be absurd to have expected recusal.
His explanation for why he didn’t report a one-time gift of a private flight is more tortured, relying on a strained definition of “facility,” but, given what we’ve learned about Clarence Thomas’ relationship with Harlan Crow and various “whatabouts” involving other justices in the ensuing discussions, I suspect that Alito is technically right that he wasn’t required to disclose.
This, though, is interesting:
As for the flight, Mr. Singer and others had already made arrangements to fly to Alaska when I was invited shortly before the event, and I was asked whether I would like to fly there in a seat that, as far as I am aware, would have otherwise been vacant. It was my understanding that this would not impose any extra cost on Mr. 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.
In terms of the reasons we would want public disclosures of these sorts of gifts, the fact that the seat “would otherwise have been vacant” and Alito’s taking it “would not impose any extra cost” on the benefactor are irrelevant. A free private flight on a rich man’s jet beats paying for a commercial flight any day of the week. While accepting this benefit isn’t going to make a decent man corrupt, it would certainly create some modest sense of obligation.
At the same time, if flying on Singer’s plane meant that Alito didn’t require a detail of Marshals to provide security on the trip, that certainly adds a wrinkle to the ethics discussion. He may well have thought he was saving the taxpayers money.
He may well have thought he was saving the taxpayers money.
When I read this sentence, I had to check the calendar to make sure it wasn’t April 1st.
Ahh, well, see.. There’s the problem.
If a SCOTUS member cannot determine whether he has a conflict, it might be time for us to put the reporting burden on the parties before the court. Or at least share the disclosure burden so that the two reports can be compared.
Certainly, the petitioning and responding parties know if they, or their principals, donated money or in-kind services to one of the justices before whom they appear.
And wouldn’t it be great if failing to disclose such information was a crime itself?
Alito:
If you don’t want to know these things, then don’t go around accepting gifts “the cost [of which] could have exceeded $100,000 one way.”
How fucking hard can it be?
Funny. But not in a good way, unfortunately.
The Supreme Court is infested with some ethically challeged Justices. Because of this, the peoples’ trust in this important branch of government is nill. The members of the SCOTUS must be examples of stellar charachter and serve in a manner that is above reproach. Key members of this court are clearly grifting away from their patriotic duty.
There is a world of difference in the Supreme Court’s eyes between “Corrupting” and “Corrupt”. “Corrupt” is solidly against the law. If there is an explicit “I will rule this way in exchange for that particular benefit”, even the Supremes agree that is still against the law. But that’s not what ethics standards, guidelines or even state and Federal laws are meant for. Instead, they seek to prevent corrupting influence. The reason we call call it “corruption” rather than merely “bribery” is because those in the past saw the parallels in the process that leads to corrupted fruit or meat, in that once the smallest bit of rot has penetrated the skin the process, however slowly or quickly, leads to the rot of the entire organism. Millenia of human experience has shown us that the process of corrupting an official proceeds the same way. Favorable attention and “friendship” leads to “expert advice” and then to insider information, trivial gifts grow ever larger in size. If done correctly, an official can be corrupted without ever realizing it has happened.
State and Federal anti-corruption laws and guidelines are built on this core understanding of human nature. But the Supremes in their infinite wisdom, have decided that there can be no laws against corrupting practices and therefore no criminal penalties against them. Only once the rotten fruit has burst and spilled out explicit and documented bribery can any action be taken. As for Alito, Thomas and, well, all of the Justices, even the liberals, they have decided that they are too noble and pure to be affected by corrupting practices and can therefore ignore any strictures against them. They are like the heroin addict who assures themselves and everyone else that they can quit any time.
@Tony W:
Ah, but the Supremes have explicitly ruled that such things are not crimes, and no laws can be created in that regard.
When I file a case in federal court, it requires an ownership interest disclosure so that the trial judge can determine whether s/he has any conflicts. As I sit here, I cannot remember the level of ownership detail required, but I recall that you have to at least disclose the non-publicly traded entities that own >5% of the party in the case. If that disclosure identified Singer or any of his core entities, I would call BS on Alito whose office should be able to evaluate at least that filing. On the other hand, I worry that this gets into some level of “Soros-backed. . . ” where we learn than some organization that Soros put some money into directed some of their money to some organization that contributed to some cause related to the person being attacked.
1) ProPublica made a report, not an accusation.
2) Scalito could know whether his patron is involved, by knowing all the companies said patron is involved with. If he’s going to be taking expensive gifts, he should ask for a comprehensive listing just in case. repeat per patron.
3) The piece also mentions a stay at a luxury lodge. Was there an empty bed there, too, which would otherwise remain vacant, or did he sleep on the floor?
4) Private jets companies, that either lease or hire small planes, often have no set flight after dropping off clients at some destinations. When that happens, the plane is repositioned to where it’s needed, carrying no passengers. This is known as an empty leg. For this, tickets are offered to the public (usually through empty leg brokers), at a reduced price. If they’re going to fly a jet from Podunk to Houston anyway, they may as well get some revenue, however minimal. These seats are heavily discounted, sometimes costing less than even a commercial flight, but they are never given away, even if they’d otherwise go vacant.
5) Was Scalito planning a fishing trip to Alaska, and coincidentally his patron just happened to be going there at the exact same time?
6) Why doesn’t he need security and assistance from US Marshalls on a private trip?
A top lawyer has a lawyerly answer to a charge. I perhaps find that less than convincing. As to saving the tax payers money, not going would also have worked. Alito talks as though he were obligated to accept this freebie, which went well beyond just the flight. And do we have anything beyond Alito’s word that he didn’t know the suit involved Singer’s vulture capital firm? Which is actually irrelevant, see below.
Again, and echoing @MarkedMan:, this is the big league. We’re not talking about a thou in an envelope for voting on a local zoning change. We’re talking about maintaining class loyalty. Singer and Crow are acting as volunteer handlers, ensuring fealty to the Federalist Society. The Federalist Society that has fought for decades to maintain and expand the influence of political money.
Sam Alito, Leonard Leo, and the horses they rode in on.
@Joe: If Soros is taking Justices on vacations worth tens or hundreds of thousands of dollars, and having private chefs cook expensive meals and serve $1000 bottles of wine, then yes, it would rise to the same level.
Alito wrote in Dobbs that legal abortion before viability is not rooted in the history and tradition of the United States. It is very to check the long common law tradition allowing abortion before “the quickening,” that has a longer history than both the Catholic fetal personhood language Alito included in his opinion and the 19th century rise of antiabortion law.
He might be telling the truth here regarding ethical concerns, but is not unlikely that Alito lies on matters easily checked.
@MarkedMan: I am reticent to call out all the Justices for ethical shortcomings. However, unless the other Justices, who have not yet had any dirty laundry aired for the public’s attention, speak out against such conduct, then they all can be seen as sailing in the same unwieldy boat.
No gifts valued at more than $100. Period. Found a good book you want to share with your good friend SC Justice (fill in the blank)? Sure, go ahead. Want to buy them lunch at the local deli? Why not?
Want to take them out for a 5 star $4K meal? Nope. Want to fly them across the Pacific Ocean in your private jet for an all expenses paid tropical vacay? Fuhgeddaboudit.
@Chris:
There’s that. And it might hint at a kind of force multiplier.
Say one vote on a given case may not be enough to swing it to the preferred decision by a justice’s patron. But if patrons A, B, and C pay off justices X, Y, and Z on condition they all vote favorably, regardless of which patron is involved, then it’s much worse.
Over at LGM, Cheryl has a photo. As they say on the TV fishing programs, nice fish. Alito looks to be wearing about a thousand bucks worth of fishing gear he no doubt had in the closet waiting such an opportunity. Above, @gVOR10:, I mentioned Leonard Leo. Cheryl notes he was also on the trip. A coincidence, no doubt.
Whole deal looks fishy to me.
James accidentally left out the standard “but of course Alito would have ruled in favor of an American billionaire no matter what, so clearly there is no problem when he accepts hundreds of thousands of dollars in goods and services from a party in a case he must decide on.”
I mean, if that’s the Thomas rule, it should be available to all right wing crooks.
Heh.
I have heard attorney after attorney say that most judges won’t even allow anyone to buy them a cup of coffee. But here we have one of the most elite judges in the land pleading “…how was I to know?” It’s bullshit. Total bullshit. It’s Clarence Thomas level bullshit. And it’s corrupt AF.
Shame on you, James, for accepting this nonsense.
The ethics code says that “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities.” Emphasis mine. How does accepting a 6 figure gift not appear corrupt? No one has ever given me a $100,000 gift. When was the last time anyone gave you a 6-figure gift, James? How many $100,000 gifts would Thomas or Alito receive if they were not Justices?
Again – this is corrupt bullshit.
Yesterday we saw Hunter Biden accept responsibility for his actions and accept the consequences.
I’d love to see a single Republican do that.
@Kathy: @wr: It was a 7-1 decision (Sotomayor didn’t participate and Ginsburg dissented on technical grounds).
@drj: @OzarkHillbilly: @Daryl: I’m persuadable that we should change the rules. Indeed, I lean toward SCOTUS justices (and also Members of Congress) having to abide by the same ethics rules that any other federal employee has to. The question here is simply whether Alito followed the rules as have been applied to other Justices and my conclusion is that he likely has.
I am not a sociopath who is able to get material benefits from people without a sense of mutual obligation. When Joe buys me a beer, I feel a sense that I should buy the next round. In my circle of friends, we have each bought many rounds of drinks over the last forty five years of our friendship, and I bet that we are pretty close to even. Some years ago, my daughter who had inherited her mother’s looks and a girlfriend who was also a looker were at my house talking about their plans for the evening. They were joking that they had no need for money since there was no shortage of guys willing to buy them drinks. I gave them some serious money to prevent the sense of obligation. The idea that a gift worth thousands of dollars does not create an obligation is contrary to the reality of life. Sooner or later you will be called on to reciprocate. Probably there will be nothing as crass as an explicit quid pro quo, but the i.o.u. will show up. It is asking us to be ignorant of human behavior to think otherwise.
The problem with accepting ANY gift is that once a justice goes through the rationalization process once, it’s easy to have it become a pattern.
These guys are coming up with excuses that sound like they are coming from teens, “well, everybody does it,” “it seemed like it was saving money” and so on are the types of things one hears when you know the person thought they’d be able to get away with it.
These men and women have LIFETIME JOBS, the validity of which is heavily dependent upon their impartiality (real or perceived, but hopefully real).
I don’t care how much they think they “deserve.”
I don’t want to hear tortured rationalizations.
I want them to behave in a manner that comports with their extremely important jobs, and stop fobbing off these ridiculous excuses.
@James Joyner: But those rules are made up by the Supremes themselves and are a sham. “But they technically followed the rules” is not an out when they created the rules. Corrupt is corrupt whether they broke real rules or, as in this case, exempted themselves from normal ethical rules and instead wrote sham rules for themselves.
Which is what my comment is about.
Works for me. As to,
I would think that SC justices would seek to avoid even “the appearance of impropriety” but apparently something happens to them between law school and the rarefied air of the Supreme Court.
@James Joyner:
Well…in that NO RULES have been applied.
These guys are corrupt AF.
Period.
“The question here is simply whether Alito followed the rules as have been applied to other Justices and my conclusion is that he likely has.”
Thats big part of the issue. It looks like SCOTUS has set its own rules and those rules are much different than what the rest of the world, let alone judges, have to follow. I cant even accept a pen from a drug rep even though that would mean I dont have to use a hospital supplied pen and save the hospital money. I find the claim he couldn’t know Singer was involved with the entity before the court. We have Google and now GPT. It wouldn’t be that hard to have a clerk run a check and provide Alito (and the other justices) a list of prominent investors/owners/shareholders.
Mostly, they should just be reporting everything. If there was nothing wrong with accepting the trip why not report it? These guys get to have a lifetime job in one of the most powerful positions in the world. As taxpayers and voters we deserve to know who is giving them money, giving their spouses and family money or jobs, basically any income or thing of value they receive outside of their govt salary. If they dont like it they can always leave.
I suspect your instinct will be to partially defend this as being too intrusive but this is really what the rest of the world, my part of it for sure, needs to do. I cant accept a meal, a pen and God forbid a vacation trip from a drug rep. I can accept money to do research or speak for a drug company but if I do I need to report all of it. If I dont, I get fired. Not just a threat as we have fired people for hiding accepting money from drug companies for the work they were doing. You keep making the assumption that the judges are honorable men but I think they are just as susceptible as anyone else to corruption. Maybe more as absolute power leads to corruption and these guys have close to absolute power in their sphere. They clearly dont care what anyone else thinks if this labored defense by Alito is representative of how he thinks.
Steve
Look, these bribes don’t count as bribes because they’re actually gifts from my dear friend, but also I also can’t be expected to know what organizations this person is involved with because they’re just some random person I don’t know anything about
To steal a line from Trump–Leonard Leo could hire a hitman to kill someone on 5th Ave, and every anti-Trump conservative would go to one of his networking events, because they can’t get jobs outside the conservative-industrial complex.
Also, it’s pretty clear that guys like Alito and Thomas have no actual friends. It’s not that they are more corrupt, exactly. It’s that they–and guys like Leo and the ilk he grabs (the Harlon Crows)–are totally unlikable and so the only way they can have a social life is through money, power, and influence.
Rules? What rules? Given the lack of enforcement these appear to be suggestions at best.
That the NML Capital v. Argentina lawsuit involved Singer was not a secret — it was treated in the press as Singer’s lawsuit. (Google “singer argentina lawsuit” and see what comes up.) It is conceivable that if one only looked at the Supreme Court filings one would not see Singer’s name, but still: The Justice had not read any press coverage of one of the most heavily covered civil cases in the country? He didn’t know what his friend Mr. Singer did for a living? (Cf. “I had no idea that the Facebook case had any relationship to my friend Mr. Zuckerberg.”)
Considered another way: If you were an Argentine politician, would any of these excuses sound remotely credible to you?
@James Joyner:
There is no good faith argument to be made that Alito could have been the least unaware that his behavior was clearly corrupt.
“But he followed the rules” is on the same level as “The card says Moops.”
This is exactly why his response was in an editorial to the Wall Street Journal.
Things sound more credible when there is no context, no follow up questions and no fact-checking.
There are questions that should pop up that he is not only not answering, but which his choice of forum ensures cannot come up.
For instance: Is this the only trip he has taken with billionaires?
I would bet not, as it certainly looks like there is a culture of corruption on the right-wing side of the court. (The lack of whataboutism about lefty judges’ trips suggests that there aren’t any, but if there are, I’m happy to extend that culture of corruption to the entire court)
I have some wealthy friends but the most they ever do for me is buy dinner. I’m going to have to figure out why I am always having to pay for my own hotel when we go to Destin FL every year. I mean, these justices seem to think it’s very normal for rich friends to spend lavishly on their buddies.
@alkali:
What’s hilarious about this argument is the assertion that the court doesn’t even bother trying to figure out the relationship between LLCs in a civil case in order to establish if there’s a conflict of interest. By this logic, your own brother could be involved but what are you going to do? Look at SEC filings or, you know, read a newspaper? That’s actual work.
I actually believe that Alito is dumb enough to be angry about the fact that he has no clue what a SEC filing is or how to figure out anything involving finance. He’s literally the type of guy who if he does not know something assumes it’s a conspiracy and gets angry about having to do it.
I mean come on:
It would be utterly impossible for my staff or any other Supreme Court employees to search filings with the SEC or other government bodies to find the names of all individuals with a financial interest in every such entity named as a party in the thousands of cases that are brought to us each year.
Are they otherwise busy doing things not related to researching a case?
Personally, I lean more towards *Alito lied* than *that sounds perfectly reasonable* because I’ve played *no one can prove that I knew this* on an occasion or two. But your binary leaves out the possibility that he may have discovered the connection sometime mid-process and would have had to wrestle with the possibility that recusal would have been the honorable choice at that point.
Still, all of this hoohah is part and parcel of the founders decision to leave “We the people” out of the process of regulating the actions taken by the government except to the extent that the voters (who at the time appear to be mostly part of the elite that would be ruling) elected those in government–at the time of the founding, House of Representatives members. The document is clear that the government regulates itself.
Who watches the watchmen?
How about you just research the ones that actually come before you? That takes it down from “thousands” to, what, 75?
@Han: Alito could also just not trade on his job to get favors from the right wing billionaire class, and avoid the entire problem that way.
When Hunter Biden trades on his last name, it’s unseemly, but he doesn’t have any role in government. This is worse.
Atrios has a couple of nice links on this. I mentioned above that Leonard Leo was on the trip. Per Charles Pierce Leo organized the trip, shortly after Alito’s confirmation, introducing Singer and Alito and asking Singer to provide the plane. Which is to say he was setting Singer up as Alito’s Federalist Society handler.
And this piece does a pretty good job of fisking Alito’s WSJ op-ed. It also notes that it confirms Alito’s ties to the WSJ editorial page, which is another bit of evidence supporting the theory that Alito leaked Dobbs.
@gVOR10: Thanks for the link to the Above The Law post. That was…bracing. And useful.
Maybe small minds like mine will never understand the deep workings of the US legal system, including the Supreme Court, but aren’t the rules/ethics/friendly suggestions about judges taking gifts based on the assumption that time flows forwards, not backwards? Apparently not. Here’s Alito:
If you just don’t take the gift, then you’re covered, no matter what happens next. Your benefactor brings a case to the Court, and you know they’re involved, you have a vague inkling, you don’t know but people might assume you do, you don’t but the benefactor disguised his involvement, etc. etc. The time to deal with the conflict is before it exists, not after. But there I go again, assuming time’s arrow goes in one direction.
@ James
Brett Kavanaugh living far (far!) beyond his means. Thomas and Alito accepting fabulous gifts from uber-rich patrons. What exactly will it take for you to admit that the court’s majority is corrupt? The legitimacy of the Supreme Court, a fairly important institution in our country, is vanishing like dew on a hot summer morning.
There is simply no way to accept gifts of this magnitude without some sense of obligation attached.
I just spent a couple of N/C days at a buddy’s lakeside Airbnb, something I do every year. It’s a nice freebie, but it’s nothing that I could not also afford to pay for. It’s not enabling me to live beyond my means. And I’ll do something nice for him of roughly equivalent value so that our friendship remains on even footing.
Do you really not see the difference between a guy doing something nice for one of his buddies and a plutocrat buying favor from one of the most powerful people in the country?
Alito is a phucking c—t.
How many people do you know that you have only “spoken to 5 or 6” times plunks down 150k for a vacation on your behalf?
And if someone did, are you telling me you wouldn’t have some fealty to this person in the future. Alito and Thomas live in an unreal vacuum. Power corrupting absolutely.
Alito must think we are all idiots. Mr. Joyner especially.
@anjin-san: The Thomas/Alito corruption issues definitely have made me wonder more about Justice Kavanaugh.
No one discharges that amount of debt in that short a time period on the salaries that family was making WITHOUT some gift or largess coming from somewhere. Maybe it was family help, but it *feels* a lot like the Federalist Society has some sort of funding pathway.
This all stinks to high heaven and in need of some sunlight or other disinfectant.
A little late here but…
@James Joyner:
You are wrong, James. The Ethics in Government Act absolutely requires disclosure of travel. Alito’s claim that he could exempt reporting of the plane ride as “personal hospitality” doesn’t match the actual text of the statute – or how it has been interpreted by everyone else.
As to how it is applied to the rest of the Justices, as far as we know, it is only the Federalist Society Judges, and only a subset of them, that ignore the ethics rules so egregiously. Kagan literally turned down a basket of bagels from long-time friends.
Further, because of the position taken by Roberts, we wouldn’t know if the ethics rules had been enforced against anyone as he is adamantly opposed to transparency.
On this specific case, it wasn’t just the one 7-1 decision. There were quite a number of prior denials of cert which protected Singer’s wins in lower courts. We don’t know what the votes looked like or would have looked like absent the corrupting gifts. And the lavish gifts weren’t just
Contrast that a physician can’t get or give gifts more than $489 (in 2023) in the aggregate annually from anyone they have a referring relationship with. I literally saw today a settlement announced by the CMS OIG in the amount of $3.825 Million because the nursing home gave gifts to its referring physicians. And that amount was lowered based on the ability of the nursing home and its management company to pay the fine. The principal allegation was that they gave “certain physicians extravagant gifts, including expensive dinners for the physicians and their spouses, golf trips, limousine rides, massages, e-reader tablets, and gift cards worth up to $1,000.”
What Alito (and Thomas) are doing is unethical and a violation of the Ethics in Government Act. Period. Anyone else would be sanctioned.
That you found his “argument” in the WSJ persuasive does not reflect well on your ability to identify bullshit spewed by those you are inclined to respect. It was mocked for its inanity and how it could have been written by a chatbot. See. e.g., Ken White’s toot.
Ultimately, the standard for recusal is whether a reasonable person could look at the situation and conclude that the judge might be biased. Judges, perhaps unsurprisingly, have read into that standard that the “reasonable person” is actually a “reasonable judge” but even with that differential clarification it is undisputable that recusal should have been mandated. There is a reason that Alito and Thomas are selectively disclosing. And it stinks to high heaven.