Alejandro Alvarez/Sipa USA via AP Images
A protester lampoons Supreme Court justices Clarence Thomas and Samuel Alito during a march to Washington, D.C.’s Capitol Hill on June 24, 2023.
It is sometimes possible to gauge the legitimacy of an exposé by the nature of the response. Consider, for example, recent revelations concerning Supreme Court justices Amy Coney Barrett and Samuel Alito.
Following Barrett’s confirmation, which required moving from South Bend, Indiana, to Washington, D.C., she and her husband sold their home to Brendan Wilson, an incoming Notre Dame law professor, for $905,000. As reported by CNN, Wilson had taken a position as head of the university’s Religious Liberty Initiative, which occasionally files amicus curiae briefs before the Supreme Court.
Barrett’s response was complete silence, declining to answer CNN’s inquiry. That was reasonable because there was nothing to the story. Barrett’s family had a house to sell, and Wilson needed to buy one. It is hardly unusual for a new faculty member to buy the home—in this case, within walking distance to campus—of a relocating colleague.
There was no connection between the purchase, which was reported in the local press at market price, and the Supreme Court. The sale of a justice’s “personal residence” is not subject to financial disclosure reporting. Barrett trusted the public to recognize a non-event, and indeed the story had no legs.
Compare that with Justice Samuel Alito’s frantic reaction when he learned that ProPublica had obtained information about his 2008 Alaska vacation with a group of Republican donors and activists. As the CNN reporters had done in Barrett’s case, the ProPublica reporters contacted Alito for comment ahead of publication, sharing with him the details they had discovered. Rather than answer or ignore them, however, Alito took advantage of his connections at The Wall Street Journal editorial page to publish a lengthy prebuttal, beating the ProPublica article into print by a matter of hours.
Alito conceded the basic facts in the ProPublica report. His three-day junket at a luxury fishing camp, arranged by Federalist Society leader Leonard Leo, had been hosted by Republican donor Robin Arkley II, with private jet travel courtesy of hedge fund CEO Paul Singer, also a mega-donor to conservative causes. Alito did not include any of this on his annual disclosure form, and he did not later recuse himself from cases involving Singer’s business interests.
As would be expected in an angrily composed apologia, Alito’s defense is pretty thin. Echoing Justice Clarence Thomas’s rationale for his own extravagant vacations, Alito’s op-ed invokes the “personal hospitality” exemption from disclosure, claiming that it then covered all “accommodations and transportation for social events.” In fact, the Ethics in Government Act applies only to “food, lodging, and entertainment,” with no mention of transportation.
As would be expected in an angrily composed apologia, Alito’s defense is pretty thin.
Alito prides himself on textualism in his rulings. But his defense of taking billionaire largesse took extraordinary effort, cobbling together a few unrelated statutes and a random dictionary definition, to conclude that an airplane trip qualifies as an exempt “transportation facility.” But even that rickety construct doesn’t turn Alito’s excursion into nonreportable hospitality. The statute’s plain language exempts only “food, lodging, and entertainment” provided “on property or facilities owned by [a] person,” which would at most apply to in-flight refreshments and a movie but not to the value of the flight itself.
Even more labored is Alito’s apparent argument that the trip fell below 2008’s $335 reporting threshold because his seat “would have otherwise been vacant.” Under the Ethics in Government Act, however, it is the value of the gift to the recipient, not the donor’s cost, that matters.
In terms of jurisprudence, back in 2014 Alito participated in a Supreme Court case crucial to Singer’s financial interests. He voted with the majority to affirm a ruling that ultimately led to a $2.4 billion recovery by one of Singer’s companies.
In defense of his nonrecusal, Alito claims that he was unaware of Singer’s stake in the case, which had been brought only in the name of a hedge fund. Singer’s control of the fund, however, had been widely reported in the press, including extensive coverage in none other than The Wall Street Journal.
Ignorance may be bliss, but disclosure of the Alaska trip could have prompted the defendant, or perhaps a clerk, to bring the Singer connection to Alito’s attention. But no matter, says Alito, because recusal would not have been required in any event. Notwithstanding his enjoyment of Singer’s “otherwise unoccupied seat on a private flight to Alaska,” he explained, “it was and is my judgment that these facts would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially.”
While demanding deference to his sole judgment, Alito again avoids the language of the relevant statute, which requires recusal whenever “his impartiality might reasonably be questioned.”
Alito’s panicky attempt to preempt the ProPublica story stands in sharp contrast to Barrett’s calm silence, revealing, at the very least, his unspoken recognition that the reporters have unearthed some very inconvenient truths.
I once defended Alito’s handling of ethics issues, but not this time.
