SCOTUS Has Alito Problem

Photo of Justice Alito, by Susan Walsh / AP

In some ways it was bound to happen. For months the public focus has been on Justice Clarence Thomas. Per excellent reporting by ProPublica, Thomas had secretly accepted myriad unreported gifts from billionaire-with-an-archvillain’s-name Harlan Crow: lavish private flights, luxury trips, years of private tuition for a family member, and money for the sale and renovation of his mother’s home (where she still lives rent free). With all that rotting out in the open, it was naturally time to look at the records and practices of other justices who seem to operate outside ethical rules. 

This time in the barrel belongs to Justice Samuel Alito, the author and possible leaker of the Dobbs decision that struck down 50 years of federal abortion rights protections under Roe v. Wade. Like Justice Thomas, Alito has been cozy with his own billionaire, hedge fund owner Paul Singer. According to a new blockbuster report from ProPublica by the same team of reporters who brought us the corrupt tales of Justice Thomas, billionaire Singer flew Alito to Alaska on a private plane for a salmon fishing retreat back in 2008.

These billionaires sure like making friends with Supreme Court justices. 

As with Thomas and Crow, Alito never disclosed the trip or his relationship with Singer, even though Singer had many cases that regularly came before the Court for review. This included a doozy in which Alito joined the majority in handing Singer’s company an outcome worth $2.4 billion. More on that below.

This controversy is further unique because Alito, seeking to get out ahead of the story, went to his buddies at the Wall Street Journal Opinions department and got them to publish an OpEd written by him entitled “ProPublica Misleads Its Readers.” It purported to “respond” to the ProPublica report hours before it was published. It is awkward and frankly embarrassing to see a justice opine on something he hasn’t even read, all in the hopes of saving his own ass.

Alito’s stated rationales for why he didn’t report the trip, along with his downplaying of his relationship with Singer, are unconvincing and in many ways ludicrous. More on that below, too. But his words do nothing to change the fact that we now have two sitting justices who are trying to explain away apparent efforts to buy influence with the Court.

As Ronald Reagan once put it, if you’re explaining, you’re losing.

Let’s look at the basic facts uncovered in the ProPublica reporting, and then at Alito’s lame responses in his OpEd. If Chief Justice John Roberts thought the scrutiny and collapsing public faith in the High Court had subsided, he thought wrong. 

A Hedge Fund Buys a Friendly Ear at Court

In July of 2008, Alito accepted an invitation to fly on Paul Singer’s private jet to stay at the King Salmon Lodge in Alaska, a favorite retreat for celebrities, wealthy businessmen and sports stars, where the going rate was more than $1,000 a day. The flight alone would have cost over $100,000 had Alito chartered a private jet of his own. The men spent the weekend fishing together, with Alito photographed beside a beaming Singer while holding a king salmon nearly the size of his leg. 

Photo shows Justice Alito and Paul Singer in Alaska, courtesy of ProPublica

At night they enjoyed multicourse meals of Alaskan king crab legs or Kobe filet, all courtesy of another major donor to conservative causes, Robin Arkley II, who had recently acquired the lodge. One member of the group bragged that they were drinking wine that cost $1,000 per bottle. Quite a unique and unforgettably privileged experience. 

Singer’s hedge fund, Elliott Management, was no stranger to the Court. After that trip, the company came before the Court a whopping ten times in various disputes, nine times with review being denied—a great result if you were the winner at the appellate level. Apparently Singer is highly litigious and uses the courts to earn wins for his business. In one major case, his fund sued the government of Argentina over a bond dispute, and that matter also got all the way up to SCOTUS, which this time granted review and ruled in Singer’s favor 7 to 1. Alito, who did not recuse himself, joined the majority. Singer’s company was ultimately paid $2.4 billion as a result of that win.

It should be noted that the granting of Supreme Court review is very rare and is often more than half the battle, since it requires four justices to agree to it. But the decision-making process and votes on granting review remain opaque and non-public and are thus ripe for abuse. We simply do not know what discussions go on behind closed doors among justices who agree to grant review. And that’s why it is vital to prevent the public appearance of impropriety, especially around purchased influence.

Speaking of purchased influence, over the last decade, Alito’s billionaire buddy Singer has donated over $80 million to Republican political groups. He is a major benefactor of the Manhattan Institute for Policy Research, which is a conservative activist organization that often files amicus briefs, meaning “friends of the court” papers, with SCOTUS. This term the Manhattan Institute filed 15 such briefs, including one urging the court to block student loan relief. The Court has yet to rule on that case.

The owner of the lodge where Alito stayed, Robin Arkley II, was also well practiced at hosting justices. Three years prior, his guest had been Justice Antonin Scalia, who died in 2016. Scalia also failed to disclose his trip there, along with many other junkets.

There’s another important wrinkle to this story. Per the ProPublica report, it was Leonard Leo, the billionaire leader of the Federalist Society, who helped organize Alito’s fishing vacation. Leo had invited Singer to join the trip and had asked if Leo and Alito could fly on Singer’s jet out to Alaska. Leo had been an advisor to Alito’s confirmation to the Court, and Singer was a major donor to Leo’s political groups. 

Leo is also closely tied to Justice Clarence Thomas. Per reporting by the Washington Post, Leo helped funnel tens of thousands of dollars in payments, off the books, to Ginni Thomas some ten years ago. Leo also made Clarence Thomas the godfather of one of his children and has hosted Thomas at his New England vacation home. 

What’s unique about this case is that we normally never see a justice actually rule on a case, rather than recuse themselves, after receiving an expensive gift from one of the parties. As Charles Geyh, a law professor at Indiana University and a leading expert in recusals, pointedly noted to ProPublica, “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 [gift]?” 

In short, if you want the public to believe you aren’t corrupt, then stop hanging out with billionaires who fly you around on incredible trips you could never afford on your own.

Alito’s responses

Let’s begin by noting how weird it is for a sitting justice to go public with his defense on the pages of a partisan Opinion department like that of the Wall Street Journal. If you’re trying to show you aren’t biased or influenced, you’ve lost your argument out the gate by publishing there.

As to the substance of the report, Alito argues that his benefactor Singer “allowed me to occupy what would have otherwise been an unoccupied seat on a private flight to Alaska. It was my understanding that this would not impose any extra cost on Mr. Singer.” 

Ah, so you see, it wasn’t like he was getting an expensive flight covered. That seat would have been empty and its value wasted had Alito not begrudgingly gone on this great, all-expense paid trip with his hedge fund and Federal Society pals.

Alito also claims, “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.” Standard practice? Perhaps he was referring to what Justices Scalia and Thomas also were doing and not reporting. Hey, the other guys did it and got away with it, so why couldn’t I?

It is laughable for Alito to try to explain how it was he went on a fishing trip to Alaska with a bunch of billionaires who just happened to want to have him along as a guest. Any reasonable person would understand, without knowing anything else, that it looks fishy, if you’ll forgive the pun. And it is the appearance of impropriety and purchased influence that the ethical rules are designed to prevent. Alito knows this, and he knows better. It’s insulting that he thinks he can explain this away, and equally insulting that he even tried.

On that last point, one further thought. How is it that Alito has such easy access to the Editorial Board of the Wall Street Journal, such that he can get them to publish his “response” to a piece so readily? It brings to mind one unanswered question around the Dobbs leak itself. As Marc Tracy of the New York Times reminded on Twitter,

A thing that kind of got memoryholed is that about a week before Politico published the draft Dobbs decision, a WSJ editorial seemed to rely on a leak of the eventual Dobbs result

It’s often forgotten that there were not one but three leaks around the Dobbs case. The first actually came before the opinion itself leaked, when the Wall Street Journal Editorial Board wrote that the Court had voted to overrule Roe, but that Chief Justice John Roberts was still trying to persuade either Justice Brett Kavanaugh or Justice Amy Coney Barrett to uphold the Mississippi abortion restriction without overturning Roe. Who on the Court fed their Editorial Board this information?

It now seems clear that one prime suspect must be Justice Alito, who through his OpEd Tuesday evening has provided evidence of his close association with that editorial board.

The whole matter stinks of influence buying, corruption and breaches of confidence. Every case Thomas and Alito rule on now arrives tainted and bears an asterisk. In light of this, the Chief Justice will have a hard time restoring anything that looks like public faith in a Court where two of the nine justices have now been caught with their hands in the billionaire till.