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frontier ethics

Samuel Alito’s Cheap-Wine Defense of His Alaska Jaunt Misses the Point

It does illustrate the judicial ethics system’s blind spots, however.

Chip Somodevilla/Getty Images
Justice Samuel Alito

Justice Samuel Alito wants to make something very clear: The free luxury fishing trip he took to Alaska in 2008 with some conservative donors wasn’t as lavish as ProPublica made it out to be. “I stayed for three nights in a modest one-room unit at the King Salmon Lodge, which was a comfortable but rustic facility,” he wrote on Tuesday night. “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.”

That is a great relief to the American people, I am sure. Alito’s response to ProPublica—he was pre-responding to a report from the investigative publication—actually served as a preview of their reporting. His statement came in the form of an op-ed in The Wall Street Journal, whose editorial section is typically conservative. And while he made a few good points in his own defense, the court’s second-most-senior associate justice appears to have missed the judicial ethics forest for the trees—or, perhaps more accurately, the stream for the salmon.

ProPublica’s reporting focuses on Alito’s interactions with Paul Singer, a GOP megadonor and former lawyer who has long funded some of the conservative legal movement’s vital organs. When he is not contributing to Republican causes, Singer runs a prominent hedge fund known as Elliott Management. One of its subsidiaries, NML Capital, famously purchased large amounts of Argentina’s sovereign debt at a discount when the country’s economy collapsed in the late 1990s. (We will come back to that later.)

According to ProPublica, Alito went on the fishing trip at the invitation of Leonard Leo, one of the leading figures of the Federalist Society and the conservative legal movement as a whole. He played a prominent role in Alito’s own Supreme Court confirmation. Singer, who funds some of the groups with which Leo is affiliated, was also on the trip. At Leo’s request, he ferried the two men from the East Coast to Alaska on his private jet. Once there, they stayed for free at a luxury resort owned by a conservative businessman who, according to the news outlet, was also a major donor to right-wing legal causes.

Around this time, Singer’s NML Capital was locked in a high-stakes legal battle with Argentina over the debt that it had purchased. Most of Argentina’s other creditors had agreed to a debt-restructuring deal that shaved as much as 70 percent off of the bonds. Singer and his hedge fund were among the holdouts who sought to recoup the full face value of the bonds, which they had bought on the cheap.

In 2014, the battle reached the Supreme Court on a question about the Foreign Sovereign Immunities Act, or FSIA. The doctrine of sovereign immunity generally means that a country can’t be sued in courts without its consent. (Think of it as diplomatic immunity, but for countries instead of people.) The FSIA applies that principle to the federal courts by holding that a foreign country typically can’t be sued in them against its will.

The various intricacies of the Argentine debt litigation aren’t all that important here. What matters is that some aspects of the case had reached the court in the petition stage starting in 2007, but that the parties were unsuccessful in getting the justices’ attention until the 2014 case. More specifically, the court agreed to hear Republic of Argentina v. NML Capital to determine if the FSIA prevented Argentina’s creditors from using the discovery process in litigation to find the country’s extraterritorial assets. Argentina did not want this to happen for a few reasons, foremost among them that it was an important step in potentially seizing those assets to pay off debts.

Singer’s NML Capital was the named litigant for the creditors in the case. In a 7–1 decision, the court sided with him and the other creditors, ruling that the FSIA did not apply in this circumstance. Justice Antonin Scalia wrote an opinion for the court that Alito joined, while Justice Ruth Bader Ginsburg authored a solo dissent. Justice Sonia Sotomayor recused herself from the case for unstated reasons, but it likely had to do with her prior service on the Second Circuit Court of Appeals, which was extensively involved in the litigation.

Two aspects of this incident are relevant here: Alito’s decision to not report the trip in his legally required annual financial disclosures in 2008, and his participation in the 2014 case despite Singer’s involvement in it. On the reporting question, Alito argued that the trip fell within the “personal hospitality” exception for disclosing gifts. This is the same provision that Clarence Thomas cited to not disclose his luxury vacations with Harlan Crow. In his Journal op-ed, Alito references a few dictionary definitions of various terms to prove his point. The most important one is that, according to Alito, the term “facilities” in the statute “encompasses means of transportation.”

ProPublica’s legal experts were skeptical of that interpretation of the law, noting that the exception typically covers only food, lodging, and the like. Neither Alito nor any other federal judge has to report when they go over to someone’s house for dinner or when they stay in a friend’s guest room for the weekend. Judges have higher ethical obligations than average citizens and most other civil servants, but the judicial oath is not generally seen as a monastic one. But interpreting private jet flights across North America as “personal hospitality” grants an interesting insight into Alito’s approach to textualism, which typically compels judges to read statutes as they are written.

Alito also defended the omission on the unusual grounds that the seat would have just gone to waste if he hadn’t taken it. “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,” he writes. “It was my understanding that this would not impose any extra cost on Mr. Singer.” This argument might make more sense if Singer was offering him a Thanksgiving turkey, but private jet flights are not disposable goods that must be used or lost.

On the recusal question, Alito’s arguments are somewhat more sensible. He claims that it was not practically feasible to screen every case thoroughly enough to avoid potential conflicts. “The entities that ProPublica claims are connected to Mr. Singer all appear to be either limited liability corporations or limited liability partnerships,” he explains. “It would be utterly impossible for my staff or any other Supreme Court employees to search filings with the SEC or other government bodies to find the names of all individuals with a financial interest in every such entity named as a party in the thousands of cases that are brought to us each year.”

Alito notes elsewhere in the op-ed that he has “voted on approximately 100,000 certiorari petitions” since joining the court in 2005, and that the overwhelming majority of those petitions “receive little personal attention from the justices because even a cursory examination reveals that they do not meet our requirements for review.” But even if you take his point on cert petitions, the same can’t be said for the cases the court actually agrees to hear, like the 2014 one between NML Capital and Argentina. The court has only heard oral arguments in 60 cases during its current term, for example.

The justice ultimately defends his decision to not recuse himself because, in his telling, he actually barely knows Singer. “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,” he explains in his op-ed. “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.”

This is the opposite tack that Thomas took while defending his relationship with Crow, with whom he has apparently been friends for more than a quarter-century. But the same fundamental problem remains. I wrote recently that the conservative legal movement, at its upper echelons, is basically an elite social club that rewards and polices ideological loyalty among Supreme Court justices. Those who have its leaders’ approval get certain perks and advantages: Leonard Leo and a small coterie of conservative billionaires will take you on free luxury vacations beyond the reach of most Americans, fete you at parties and events with other conservative lawyers, and so on. If anyone challenges this, a small army of right-wing legal groups in Washington leap to your defense.

The law’s understanding of judicial ethics is not designed for this dynamic. After all, Crow had almost no involvement in actual Supreme Court cases and Singer’s tussle with Argentina appears to be his only direct encounter with the justices. What these men all share instead is a common goal of tilting the American legal system itself further to the right, and a camaraderie that gives benefits to those who advance the cause. In that sense, I almost sympathize with Alito’s insistence that he wasn’t drinking thousand-dollar bottles of wine in Alaska. Surely the conservative donor class can do better in the future for the author of Dobbs v. Jackson Women’s Health Organization.