Supreme Court Associate Justice Samuel Alito speaks during the Federalist Society’s 40th Anniversary at Union Station in Washington, Monday, Nov. 10, 2022. (AP Photo/Jose Luis Magana)
Rather than commenting on the record to the source of recent exposés on his conservative colleague Justice Clarence Thomas’ GOP billionaire-sponsored luxury yacht trips, Justice Samuel Alito penned an op-ed in the Wall Street Journal on to say that there was nothing to see in a forthcoming story about a 2008 Alaskan fishing trip.
Alito preempted the publication of “Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court” with the op-ed after being given the weekend to respond a series of questions about taking a private jet to Alaska in 2008 on the dime of Elliott Management hedge fund billionaire and GOP donor Paul Singer, chairman at the Manhattan Institute — an influential conservative policy think tank — friend of the Federalist Society, and so-called “vulture capitalist.”
The crux of the ProPublica story is this:
ProPublica’s investigation sheds new light on how luxury travel has given prominent political donors — including one who has had cases before the Supreme Court — intimate access to the most powerful judges in the country. Another wealthy businessman provided expensive vacations to two members of the high court, ProPublica found. On his Alaska trip, Alito stayed at a commercial fishing lodge owned by this businessman, who was also a major conservative donor. Three years before, that same businessman flew Justice Antonin Scalia, who died in 2016, on a private jet to Alaska and paid the bill for his stay.
The story, noting that the Alaska private jet flight “could have exceeded $100,000 one way,” said that Singer went on six years later to reap a $2.4 billion windfall when the Supreme Court ruled in his favor in a Foreign Sovereign Immunity Act case stylized as Republic of Argentina v. NML Capital.
That case involved a subsidiary of Singer’s Elliot Management, but according to ProPublica, “In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media.”
As far as the Republic of Argentina v. NML Capital case is concerned, the decision was 7-1, with Justice Ruth Bader Ginsburg as the lone dissenter and Justice Sonia Sotomayor not participating. Alito did not do any writing. That was left to Justice Antonin Scalia, who wrote the opinion for a majority that included Chief Justice John Roberts, Justice Anthony Kennedy, Justice Stephen Breyer, and Justice Elena Kagan.
On Jan. 10, 2014, the day that the petition for a writ of certiorari was granted in the Republic of Argentina v. NML Capital, Alito did not take part in the consideration of three other petitions (Third Circuit alumnus Alito isn’t the justice assigned to handle Second Circuit petition, that’s Justice Sotomayor; four justices are needed to grant cert, and the case ended up being 7-1).
“Alito did not disclose the flight or the stay at the fishing lodge in his annual financial disclosures. A federal law passed after Watergate requires federal officials including Supreme Court justices to publicly report most gifts. (The year before, Alito reported getting $500 of Italian food and wine from a friend, noting that his friend was unlikely to ‘appear before this Court,’)” the ProPublica story said.
In his own defense ahead of the publication of the foregoing, Alito wrote in WSJ that the “two charges” against him — that he created an appearance of impropriety by not recusing himself from Republic of Argentina v. NML Capital and that he should have reported the Singer-sponsored trip — are invalid.
Alito wrote that even if he was aware of Singer’s connection to Republic of Argentina v. NML Capital “recusal would not have been required or appropriate.”
“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,” Alito wrote, likely referring to anything from Federalist Society events, to Manhattan Institute events, or more. “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.”
Alito justified accepting the seat on the private jet because, in his words, it was empty and would have stayed empty had he not sat in it.
“And as I will discuss, he allowed me to occupy what would have otherwise been an unoccupied seat on a private flight to Alaska,” the justice continued. “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.”
Regarding his non-reporting of the above on his 2008 financial disclosure form, Alito followed the lead of Justice Thomas in his response: the King Salmon Lodge adventure did not have to be disclosed due to a since-closed “personal hospitality” loophole.
“Until a few months ago, the instructions for completing a Financial Disclosure Report told judges that ‘[p]ersonal hospitality need not be reported,’ and ‘hospitality’ was defined to include ‘hospitality extended for a non-business purpose by one, not a corporation or organization, . . . on property or facilities owned by [a] person . . .’ Section 109(14). The term ‘facilities’ was not defined, but both in ordinary and legal usage, the term encompasses means of transportation,” Alito wrote. “This understanding of the requirement to report gifts reflected the expert judgment of the body that the Ethics in Government Act entrusts with the responsibility to administer compliance with the Act, see 5 U.S.C. App. §111(3). When I joined the Court and until the recent amendment of the filing instructions, justices commonly interpreted this discussion of ‘hospitality’ to mean that accommodations and transportation for social events were not reportable gifts. 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.”
“For these reasons, I did not include on my Financial Disclosure Report for 2008 either the accommodations provided by the owner of the King Salmon Lodge, who, to my knowledge, has never been involved in any matter before the Court, or the seat on the flight to Alaska,” the justice wrapped up his op-ed, also criticizing the ProPublica as “misleading” for claiming the King Salmon Lodge was luxurious 15 years ago. “I stayed for three nights in a modest one-room unit at the King Salmon Lodge, which was a comfortable but rustic facility. As I recall, the meals were homestyle fare. I cannot recall whether the group at the lodge, about 20 people, was served wine, but if there was wine it was certainly not wine that costs $1,000.”
Although Alito did not report the Alaska trip in his financial disclosure form, he referenced it before publicly in Singer’s presence while at the Federalist Society’s annual dinner in 2009. At that event, which David Lat described in Above the Law as “like being at the legal world’s version of the Vanity Fair Oscars party,” Singer introduced the justice for a speech.
Alito responded with a joke.
“Paul, thank you for the introduction. It was extravagant, but I enjoyed it,” he said. Then the justice told a story:
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?”
Late Tuesday, Mark Paoletta, a conservative lawyer for Ginni Thomas and one the Justice Thomas’ friends, ripped ProPublica’s reporting on Alito as “baseless smears.”
On Wednesday, Paoletta called the story “meaningless.”
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