Supreme Court justices will gather behind closed doors Tuesday for their first meeting back in Washington since leaving for the high court’s summer recess.
At the so-called “long conference,” the justices will weigh whether to take up roughly 950 cases that have piled up over the past three months. History indicates they will ultimately reject nearly all of them.
But the ritual this year comes as scrutiny grows over the court’s ethics standards, a subject the justices have acknowledged discussing during their private meetings.
And behind closed doors Tuesday, there is at least one matter that will capture the ethics conundrum, as justices consider whether they will hear a case involving the company of a hedge fund manager who reportedly flew Justice Samuel Alito to Alaska in 2008. There’s so far no indication Alito will step aside.
Alito has been among the justices who has blown off calls by Congress for ethics reform. But multiple justices across ideological lines expressed hope over the summer that the nine can soon reach an agreement of some sort.
“What goes on in the conference room goes on in the conference room, and I don’t want to suggest that there’s like one holdout,” Justice Elena Kagan, who has voiced support for an ethics code, said last week of the talks.
Tuesday’s conference marks the first since Senate Judiciary Committee Democrats advanced a Supreme Court ethics bill in July.
The firestorm came in response to a series of ProPublica reports detailing undisclosed luxury trips, gifts and a real estate deal that Justice Clarence Thomas accepted from Republican megadonor and real estate magnate Harlan Crow. Thomas has denied any intentional wrongdoing.
Democrats’ proposal faces stiff opposition from Republicans, who have portrayed the push as a partisan attack on the court, given that much of the recent controversy has focused on Thomas and Alito, two of the court’s leading conservatives.
Though chances of a congressional intervention remain slim — and some on the court have cast doubt such a move would be constitutional — several justices have expressed optimism the court can make changes internally.
“I want to assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct,” Chief Justice John Roberts said during a May speech.
“We are continuing to look at things we can do to give practical effect to that commitment, and I am confident there are ways to do that that are consistent with our status as an independent branch of government, under the Constitution’s separation of powers,” he continued.
Several of Roberts’s colleagues repeated that same line as they spoke at colleges and conferences across the country over the summer.
“The chief justice spoke about that in May and said that we are continuing to work on those issues, and that is accurate. We are continuing to work on those issues, and I’m hopeful that there will be some concrete steps taken soon on that,” Justice Brett Kavanaugh said in Ohio earlier this month.
When Kagan spoke at Notre Dame Law School last week, she echoed Kavanaugh’s comment, saying, “I hope that that’s true.”
“I think it would be a good thing for the court to do that,” Kagan said. “It would help in our own compliance with the rules. And it would, I think, go far in persuading other people that we were adhering to the highest standards of conduct.”
But court watchers agree that any proposal would need the support of all nine justices, and Kagan acknowledged “good-faith disagreements” among her colleagues.
Though Kagan declined to name who was holding out, Alito has perhaps been the most vocal justice publicly rejecting Democrats’ ethics push.
“I know this is a controversial view, but I’m willing to say it,” Alito told The Wall Street Journal’s opinion section in July. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Alito came into the ethics fray in June, when ProPublica reported he was flown to Alaska in 2008 on the private jet of hedge fund manager Paul Singer.
A subsidiary of Singer’s hedge fund came before the court several times in the years following. In 2014, the court agreed to hear a case in which the subsidiary was a party, and Alito joined the 7-1 majority that sided with Singer’s business. Alito has denied any wrongdoing.
Singer’s interests will be back before the high court during the long conference.
Among the roughly 950 petitions for the Supreme Court to take up cases scheduled for consideration Tuesday is a bankruptcy dispute in which Elliott Management, Singer’s hedge fund, is a party.
But Alito’s past public comments signal he is unlikely to recuse. In a Wall Street Journal op-ed, Alito said though he was “unaware” of Singer’s connection to the 2014 case, recusal would not have been appropriate even if he did know.
“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,” Alito wrote in the op-ed, adding that he has only spoken to Singer a handful of times.
Singer’s fund asked the justices to stay out of the latest dispute.
The odds are in his favor, as the court rejects about 99 percent of the petitions it receives.
The sheer volume of petitions — thousands each year — leaves much of the work to law clerks, who write memos recommending whether to take up a case. Most petitions don’t even get a discussion at the justices’ actual conference.
In the op-ed, Alito, who regularly recuses from cases involving companies he invests in, noted the volume of petitions, calling it “utterly impossible” to find every financial interest.
The justices for most cases don’t publicly report vote counts and instead make their decision public in a series of brief orders. But those orders have become increasingly striking in recent months as it comes to recusals.
As Democrats renewed their ethics push, the court released a “Statement of Ethics Principles and Practices” signed by all nine justices April 25 indicating justices can offer brief explanations when they recuse from a petition.
On June 12, Kagan became the first to explain a recusal, noting a conflict because of her prior government employment.
Three justices across ideological lines have since noted recusals but declined to follow suit with an explanation: Alito, Justice Sonia Sotomayor and Justice Neil Gorsuch.
Justice Ketanji Brown Jackson didn’t provide a reason when she recused from a petition the week after Kagan’s explanation. But a week after that, Jackson recused again and did provide a reason: her service on a lower court.
The other four justices have not since recused from any petition.