The Weekly Sift

We’ve already heard numerous examples of Clarence Thomas taking gifts he shouldn’t and not reporting them, as the law demands.

This week, Pro Publica reported that Justice Samuel Alito accepted a flight on billionaire Paul Singer’s private jet, so that the two of them could go on an outing at a thousand-dollar-a-day Alaskan fishing lodge. (Another rich conservative donor covered the cost of the lodge. Since he owned the lodge, this was — arguably, but also debatably — “personal hospitality”, which is allowed.) The outing was organized by the Federalist Society’s Leonard Leo, who also suggested Singer provide Alito’s transportation.

Alito did not report the trip as a gift, and later voted with a 7-1 Supreme Court majority that ruled in Singer’s favor in a dispute with the government of Argentina. Singer’s hedge fund made billions as a result.

Pro Publica says it would have cost $100K for Alito to charter a similar jet himself, though it’s hard to say what that number means. If he had been forced to find his own transportation, Alito would undoubtedly have found something cheaper, so it’s hard to estimate the value of the ride to him. (Imagine that a rich friend drives me to the airport in his Rolls Royce. It might cost me thousands to duplicate that experience on my own. But if he hadn’t offered, I’d probably have just spent $100 on a cab. Would I have spent $300 on a Rolls Royce cab, were such a deal available? Probably not.)

Anyway, ProPublica quotes law professor Charles Geyh, who gets to the heart of the matter:

If you were good friends, what were you doing ruling on his case? And if you weren’t good friends, what were you doing accepting this?

The Wall Street Journal printed Alito’s response to the article before the article itself came out, which strikes me as a blight on the reputation of the WSJ. ProPublica’s editor commented: “We’re curious to know whether the Journal fact-checked the essay before publication.” (Several observers wonder if this level of access is payback for Alito leaking secret court information to the WSJ. Or, as the Above the Law blog comments: “Sam Alito just went out of his way to confirm for everyone that he’s talking directly to the WSJ editors — who were as deep in the Dobbs leak as any publication except Politico.”)

Alito’s defense is a technical (and self-serving) reading of the rules on recusal and disclosure. The recusal rules say “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.” Alito boldly declares:

No such person would think that my relationship with Mr. Singer meets that standard.

I guess I’m just not unbiased and reasonable. Neither is the NYT’s Jesse Wegman, who asked “Does Justice Alito Hear Himself?“.

[C]an 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?

I’m reminded of a quote often attributed to Jesse Unruh, a mid-20th-century California legislator of somewhat dubious reputation: “If you can’t take their money, drink their liquor, fuck their women, and then come in here the next day and vote against them, you don’t belong here.”

However, even discussing the technical legality of Alito’s actions and disclosures misses the point: If the rules say that it’s OK for justices to receive expensive gifts and favors from billionaires and then rule in their favor, then the rules are wrong.

The WaPo’s Ruth Marcus applies some common sense to Alito’s self-justification:

The game here isn’t — at least it shouldn’t be — to figure out how much you can take in the way of freebies and keep that hidden. It should be to behave in a way that is above reproach and comply with the spirit of the ethics rules. Justices scouring the code for loopholes that seem to shield their bad behavior is not a good look.

Defenses of the current Supreme Court ethics policy rely on a very narrow definition of corruption: quid pro quo. In other words, we make an explicit agreement that you’ll pay me money and I’ll rule in your favor. TPM’s David Kurtz admits we’re not seeing that kind of deal-making:

The reporting so far isn’t revealing sketchy quid pro quos. The justices aren’t for sale. They’re not crafting opinions based on these freebies.

What’s actually going on is a much more subtle and insidious: The Right, under the guidance of Leonard Leo, has created an environment in which conservative justices can live the high life of free yacht cruises and luxury resort vacations, as long as they remain conservatives in good standing. If, however, they should follow the path of former Republican appointees like David Souter and John Paul Stevens and stray into liberalism, all those invitations from billionaires would dry up.

Of course Alito and Thomas know that. And it can’t help but influence their thinking. They’re in a position similar to a mega-church pastor who can’t let himself examine his doubts about God too closely. There may not be any quid-pro-quos here, but it’s corruption all the same.

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It’s hardly a new observation that the Right engages in projection: What they accuse the Left of doing is usually little more than a confession of what they’re doing themselves. But even knowing how common the pattern is, this Leonard Leo statement is striking:

We all should wonder whether this recent rash of Pro Publica stories questioning the integrity of only conservative Supreme Court Justices is bait for reeling in more dark money from woke billionaires who want to damage this Supreme Court and remake it into one that will disregard the law by rubber stamping their disordered and highly unpopular cultural preferences.

Wow. Billionaires using dark money to reshape the Court in order to push an unpopular cultural agenda … like reversing Roe v Wade, say? Who could imagine such a thing?