Alito, Thomas and the Supreme Court’s culture of concealment

Supreme Court Justice Samuel Alito’s recent Wall Street Journal op-ed was revelatory, although not in the way he intended. Instead of defusing an impending Pro Publica article about his associations with a billionaire hedge fund manager, Alito provided a virtual outline of problems with the Supreme Court’s ethics practices.

To recap: Reporters from Pro Publica contacted Alito on Friday, June 16, seeking his comment on gift and recusal issues for an article they planned to publish the following week. Rather than answer the reporters, Alito published his response on the Wall Street Journal’s editorial page on Tuesday, June 20, denying what he termed “false charges” against him. The Pro Publica article was published later the same day.

The basic facts are not in dispute. In 2008, Alito spent three days at a luxury fishing camp in Alaska as a guest of the owner, Robin Arkley II, a wealthy Republican donor. Other guests included Federalist Society leader Leonard Leo, who organized the trip, and Paul Singer, another major Republican donor. Alito flew to Alaska on Singer’s private jet.

As reported by Pro Publica, Alito did not include either the lodging or jet travel on his annual financial disclosure statement. Nor did he recuse himself when matters involving Singer’s interests came before the Supreme Court, including a 2014 case in which Alito voted with the majority to affirm a ruling that ultimately led to a $2.4 billion recovery by one of Singer’s companies.

Alito defends his non-disclosure by invoking the well-worn “personal hospitality” exception. The reporting requirement in force in 2008, he says, excepted all “accommodations and transportation for social events,” although it was recently clarified to require greater disclosure.

In fact, the 2008 hospitality exclusion applied only to food, lodging and entertainment, with no mention of transportation. Alito attempts to avoid the plain language of the applicable law and regulations by raising an elaborate legal construct, built on unrelated statutes, dealing with interstate commerce rather than gift disclosure, leading to the rationalization that private jet flights count as hospitality “facilities.”

One would expect an avowed textualist like Alito to pay more attention to the disclosure language of the Ethics in Government Act, which unambiguously states that only “food, lodging, or entertainment received as personal hospitality of an individual need not be reported.”

Even more absurdly, Alito seems to argue that the flight to Alaska was not a gift at all, or perhaps did not exceed the $335 threshold in effect in 2008, given that he sat in “what would have otherwise been an unoccupied seat,” thereby adding no “extra cost” to Singer. But it is the value of the gift to the recipient, not the donor’s cost, that triggers disclosure. This is quite evident from the statutory definition of “gift,” which includes, for example, “free attendance at an event” – which likewise costs nothing to the benefactor.

Even assuming that Alito has made a decent after-the-fact case for non-disclosure, that does not explain why he withheld the information in the first place. A justice who values transparency and responsibility would not engage in casuistry and intellectual gymnastics to avoid providing the public with information that arguably falls under the Ethics in Government Act.

Full disclosure of extravagant gifts should be a justice’s default position, rather than a grudging concession made only when there is no alternative. Alito, however, asserts that he followed the “standard practice” of the Supreme Court.

Apart from Justice Clarence Thomas, we do not know whether other justices have taken such a crabbed approach to their disclosure obligations. If so, Alito has unwittingly revealed a culture of concealment that can only damage the Court’s declining reputation.

Alito’s response does make one decent point. Regarding recusal, he explains that he was not aware of Singer’s ownership of the companies in the various Supreme Court cases, which was not obvious from the pleadings.

After that, it goes quickly downhill.

Alito argues that there would have been no need for recusal even if he had been aware of Singer’s multi-billion-dollar stake in the case. “It was and is my judgment,” he says, “that these facts would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially.”

Maybe so, but the problem is that Alito, like every other justice, arrogates the decision exclusively to himself. The practice of assigning recusal rulings solely to the affected justice is one of the most serious ethics issues confronting the Supreme Court, and Alito invokes it without embarrassment, insisting that the public must unquestioningly trust his appraisal of his own impartiality.

Alito can argue the finer points of disclosure and recusal, but there is a greater issue involving the justices’ ready acceptance of lavish gifts from wealthy and politically active benefactors. Alito and Thomas, and perhaps others yet unknown, have not hesitated to vacation on the tab of the super-rich, rationalizing that they avoid talking law with their hosts, who, they assure themselves, do not have cases before the Court.

But influence does not arise only from outright favor-trading. Even when they are not parties to litigation, successful investors and industrialists have economic interests that are powerfully affected by many Supreme Court rulings. Justices who have enjoyed the trappings of wealth may identify, consciously or otherwise, with the welfare of their moneyed companions.

The justices would surely deny any such subtle influences, sincerely insisting that their judgment could never be affected by the generosity of their well-heeled friends. But social science research has determined that the receipt of gifts can powerfully sway later decisions, often in ways unrealized by the recipients.

Studies have shown that physicians’ prescribing practices can be influenced by such minor gifts as pens, notepads and sandwiches. One study of over 125,000 physicians found that receipt of a single inexpensive meal was associated with increased prescriptions of the donor’s brand-name medication.

Supreme Court justices no doubt believe they are immune to such effects, but so do doctors. In one survey of young physicians, 61 percent of respondents claimed they were never influenced by gifts from pharmaceutical companies, but only 16 percent believed that other doctors were likewise unaffected.

The Federalist Society’s Leonard Leo insists that Justice Alito is so “strong-willed and independent” that he could never be influenced by a “free plane seat or fishing trip.” Well, he would say that, wouldn’t he?

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of “Judicial Conduct and Ethics” (fifth edition) and has written many other books and articles on law practice and legal ethics.