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An odd feature of the latest Supreme Court ethics scandal is that its subject, Samuel Alito, broke the story himself. But he did a poor, even laughable, job, as I’ll explain.
A new ProPublica report raised questions about Alito's free jet travel and fancy fishing trip with a GOP billionaire who’d have business at the court from which the justice wouldn't recuse. But instead of responding to the journalists' questions, Alito preemptively pleaded his case in The Wall Street Journal's conservative opinion pages.
Far from helping his case, however, Alito made himself look even worse.
ProPublica’s report, published late Tuesday night, detailed an Alaska fishing trip in 2008, to which Alito traveled on a private jet provided by hedge fund billionaire Paul Singer. The justice did not list the trip on his financial disclosure form. Nor did Alito recuse from business Singer later had at the court, including a decision in which Alito was part of the 2014 majority siding with Singer’s financial interest.
GOP judicial kingmaker Leonard Leo, who also features in the ongoing Clarence Thomas scandal and seemingly everything else that's shady in the courts, reportedly helped organize the Alaska trip. According to ProPublica, Leo invited Singer and asked if he and Alito — whose Supreme Court confirmation Leo helped secure in 2006 — could fly on the billionaire’s jet. Singer and the fishing lodge owner “were both major donors to Leo’s political groups,” the nonprofit outlet reported.
In Alito’s Wall Street Journal op-ed, published hours before the ProPublica report on Tuesday, he argued that he didn’t have to recuse from matters involving entities connected to Singer, nor did he have to disclose gifts from the fishing trip on his 2008 disclosure. Far from helping his case, however, Alito made himself look even worse.
Alito’s characterization of his free jet flight from Singer ... doesn’t pass the laugh test.
For starters, it's beyond weird for a Supreme Court justice to publish such an op-ed. The court has a public information office. Recall that the Journal's opinion page earlier this year published an interview with Alito that likewise served as a safe platform for airing his grievances. The op-ed takes it to the next level. To be clear, Alito made a deliberate choice to speak through the Journal's opinion page that represents the nation's Republican elite. He wasn't speaking to the American people but to particular people. His people.
Digging into the substance of his argument, Alito claimed he didn’t know Singer was connected to the 2014 case because Singer’s name wasn’t listed in the court documents, and the justice further claimed that, even if he knew of Singer’s involvement, he wouldn’t have had to recuse anyway. But Alito’s claim that he didn’t know Singer was connected to the case is suspect, because even the justice’s beloved Wall Street Journal opinion page noted at the time of the decision the well-known fact that the named entity in the long-running case, NML Capital, was a subsidiary of Singer’s Elliott Management.
And even if Alito somehow didn’t know the connection, his rationale that it would be “utterly impossible for my staff or any other Supreme Court employees” to find such affiliations highlights a problem the Supreme Court needs to fix, rather than being a justification for not recusing.
Obviously, Alito recognizes — at the very least, in retrospect — that not recusing was suspect.
Indeed, Alito argues that the task of diligently checking the financially interested parties in the thousands of petitions to the court each year is unworkable, but even if that's true, it's eminently doable for the relatively few cases the justices actually agree to hear on appeal, like the decision he didn't recuse from.
Again, though, if Alito’s bottom line is that he didn’t have to recuse even if he knew of Singer’s involvement, why devote space in his op-ed to arguing that he didn’t know of the connection? Obviously, Alito recognizes — at the very least, in retrospect — that not recusing was suspect. Otherwise, there’d be no need to attempt such an unconvincing argument and justification for why he supposedly didn’t know of Singer's involvement at the time.
Relatedly, Alito’s characterization of his free jet flight from Singer — and, by implication, the reason it didn’t necessitate recusal or disclosure — doesn’t pass the laugh test. The Supreme Court justice wrote that Singer merely “allowed me to occupy what would have otherwise been an unoccupied seat on a private flight.” Alito repeated that adventurous framing of the flight later in his op-ed, insisting that he “was asked whether I would like to fly there in a seat that, as far as I am aware, would have otherwise been vacant.”
Finally, the justice’s legal argument for why he didn’t need to disclose the flight is wanting. He strained to characterize the private plane ride as exempt from disclosure because it was personal hospitality that includes hospitality on a person's "facilities." That is, Alito argued that Singer’s jet was a “facility” and therefore exempt because it was personal hospitality.
Yet, even if Alito were correct that he didn’t have to report the private jet flight because it was personal hospitality, that would cut against his recusal argument, because what he’s really arguing is that he didn’t need to recuse from a case involving someone who extended him personal hospitality.