Courts

Sam Alito Laments It's Getting So You Can't Take All-Expense Paid Luxury Vacations Funded By Billionaires Anymore

Sam Alito tried to get ahead of a ProPublica expose and it didn't work.

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Samuel Alito frown

(Photo by Alex Wong/Getty Images)

Justice Samuel Alito didn’t want ProPublica to control the narrative on the tale of his ethical conduct like the publication did with its revelations about Clarence Thomas. So when ProPublica asked him for comment on an upcoming story, he decided to get out ahead of it, dropping over a thousand words in the Wall Street Journal defending his recusals and financial disclosures. And by “get ahead of it,” we mean he openly confessed the most egregious allegation, admitted that his personal conflicts process is so negligent that he likely commits even more ethical breaches, and… maybe confirmed that he was the source of the Dobbs leak.

Stellar damage control. Right up there with O.J.’s “If I Did It.”

It’s also an ill-advised strategy for dealing with ProPublica. The ongoing Clarence Thomas scandals only started with the undisclosed Harlan Crow gifts. They waited until Thomas chose to shrug these off as falling within the personal hospitality exception before dumping the reciepts about Crow providing free housing for Thomas’s mother and private school tuition for the nephew.

ProPublica did it again. Hours after Alito piqued everyone’s interest, ProPublica released its story complete with on point responses to Alito’s excuses.

In any event, Alito explains that he barely knows Paul Singer — the billionaire investor at the heart of ProPublica’s inquiry. BARELY!

My recollection is that I have spoken to Mr. Singer on no more than a handful of occasions, all of which (with the exception of small talk during a fishing trip 15 years ago) consisted of brief and casual comments at events attended by large groups. On no occasion have we discussed the activities of his businesses, and we have never talked about any case or issue before the Court. On two occasions, he introduced me before I gave a speech—as have dozens of other people. And as I will discuss, he allowed me to occupy what would have otherwise been an unoccupied seat on a private flight to Alaska.

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That last sentence is quite the record scratch. Alito concludes that these facts wouldn’t “cause a reasonable and unbiased person to doubt” his impartiality. I worry about my ability to impartially judge strangers who lend me their phone chargers. I’m not in the world where flying me on a luxury jet to a remote Alaskan resort is one of those favors you just blow off. Pretty sure the “reasonable and unbiased person” isn’t in that world either.

And ProPublica notes that people were talking about Singer and Alito palling around in Alaska as far back as 2009… WHEN ABOVE THE LAW WROTE ABOUT IT.

Justice Alito was introduced by Paul Singer, the founder of the Elliott Associates hedge fund…. Singer, a personal friend of Justice Alito, gave the typically generous introduction…. Like a good dinner speaker, Justice Alito warmed up the crowd with a story. He talked about going on a fishing trip deep into the wilderness with Paul Singer (maybe to the wilds of Alaska, but the details escape us). One morning they woke up to find their camp surrounded by bears. Justice Alito said he asked himself: “Do you really want to go down in history as the first Supreme Court justice to be devoured by a bear?”

Yeah, these guys clearly don’t know each other at all! The ProPublica report piles on the details noting that Singer is the chair of the Manhattan Institute and Alito gave the keynote address there too. [This is where an earlier version of the article inserted a crack about Alito making martinis out of glacier ice with the guy, but that particular picture is of Scalia making martinis… lest you think the rot is recent.]

See… this is why you don’t lock yourself into a lie first and then let them come with receipts after the fact.

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In any event, after admitting the most eye-popping allegation, Alito explains why it was perfectly fine because otherwise no one would’ve sat in that seat:

As for the flight, Mr. Singer and others had already made arrangements to fly to Alaska when I was invited shortly before the event, and I was asked whether I would like to fly there in a seat that, as far as I am aware, would have otherwise been vacant. It was my understanding that this would not impose any extra cost on Mr. Singer.

That’s… how planes work! If, assuming arguendo, that someone intended to bribe you with luxury air travel, a key component would be having an empty seat to give you in the first place. Alito’s logic swallows every private travel junket as long as the party conveniently set up the flight to just so happen to be “going my way.” In this case, “my way” is to a remote Alaskan lodge for a fishing trip they went on.

So Alito admits to taking the flight and subsequently not disclosing it. In his defense, he cites the “personal hospitality” exception that Thomas also tried to invoke. Essentially, the justices assumed that they didn’t have to report these gifts — no matter how expensive — as long as they came from a rich person as opposed to a company. Whether they can concoct a reasonable reading that justifies that take isn’t really the point. ProPublica isn’t interested in whether Alito and Thomas had excuses… it’s concerned with the fact that the Supreme Court had a system in place that allowed such unethical activity — de jure or de facto.

Though, for what it’s worth, Alito does a slip-shod job trying to make the case that the personal hospitality exception applied based on some out-of-context Webster’s and Black’s Law Dictionary cites. From ProPublica:

His op-ed pointed to language in the judiciary’s filing instructions and cited definitions from Black’s Law Dictionary and Webster’s. But he did not make reference to the judiciary’s regulations or the law itself, which experts said both clearly required disclosure for gifts of travel. ProPublica found at least six examples of other federal judges disclosing gifts of private jet travel in recent years.

Imagine what a real judge would do to a litigant that traded citations to regulatory and statutory text for Black’s Law Dictionary.

Aside from disclosure, it turned out Singer had business before the Court and Alito didn’t recuse himself. But he’s got a justification for that too: his ethical screening process is so negligent he doesn’t even realize if he’s obligated to recuse himself!

Second, when I reviewed the cases in question to determine whether I was required to recuse, I was not aware and had no good reason to be aware that Mr. Singer had an interest in any party. During my time on the Court, I have voted on approximately 100,000 certiorari petitions. The vast majority receive little personal attention from the justices because even a cursory examination reveals that they do not meet our requirements for review.

Oh. “Little personal attention.” Alito provides some color to this phrasing:

In the one case in which review was granted, Republic of Argentina v. NML Capital, Ltd., No. 12-842, Mr. Singer’s name did not appear in either the certiorari petition, the brief in opposition, or the merits briefs. Because his name did not appear in these filings, I was unaware of his connection with any of the listed entities, and I had no good reason to be aware of that.

Did I call this process negligent? Because I meant reckless.

If this weren’t so obviously disingenuous, this would demonstrate a disqualifying failure to understand how investing works. Everything is in these inscrutably titled LLCs. It’s never named “Paul Singer’s Super Awesome LLC.” Which, coincidentally, is a good reason why the “personal hospitality” rule makes no sense because the person behind the shell companies can feel free to covertly grease every wheel confident that his or her name isn’t on the signature block.

If this is Alito’s conflict check process, he’s announcing that he’s constantly ruling on matters where he has personal conflicts and claiming that it doesn’t matter he because he’s not checking.

The problem is we can check. And ProPublica did check. Not that it was particularly hard because you had to be living under a frigging rock not to know that Paul Singer was behind this case, because as ProPublica notes, it received “widespread media attention” — and all those stories explicitly note that the real litigant is… Paul Singer.

That’s the issue because as Alito correctly points out, the standard 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.” Just because Alito claims he didn’t bother to perform a reasonable inquiry into the facts doesn’t matter — the public could and when they did they would’ve found his Alaskan sky chauffeur behind cases Alito jumped all over.

Then there’s the matter of the Dobbs leak.

So Sam Alito is almost assuredly behind leaking the draft Dobbs opinion. There’s still some juice in the Thomas theories, but as the investigation dragged on, Alito started looking more and more like the most famous guest star on an episode of Murder, She Wrote. He had motive and opportunity… which the Supreme Court refused to investigate. He got implicated in past leaks… which the Supreme Court refused to seriously investigate. And he’s the only one publicly yammering that he has a “pretty good idea” who did it, which is such a Murder, She Wrote villain move. He’s denied this all of course.

And then this bumbling op-ed reads like a note left at the murder scene.

Screenshot 2023-06-20 at 10.58.03 PM

So Alito is the one with the WSJ editorial board on speed dial… how does that relate to the Dobbs leak being a transparent effort to lock conservative justices into overruling Roe rather than adopting a “death by a thousand cuts” approach advocated by Chief Justice Roberts?

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 — all so he could pump out his off-the-cuff defense to serious ethical questions and only make himself look worse in the process. Not a great trade.

None of this guarantees that Sam Alito is the source of the leak.

But it’s a lot more convincing to a reasonable observer than the idea that private jet travel isn’t cause for disclosure or recusal.

Justice Samuel Alito: ProPublica Misleads Its Readers [WSJ]
Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court [Pro Publica]

Earlier: The Federalist Society Annual Dinner: Lions and Tigers and Bears, Oh My!

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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