Sam and the Salmon

Reading Justice Alito's criticisms of the reporting of his Alaska fishing trip

Supreme Court Justice Samuel Alito, center, and Paul Singer, right, in Alaska

A hot air balloon is blown dramatically off course.  The balloonist struggles to land the balloon and eventually does so in a large cornfield.  The first person the balloonist sees is a lawyer.

            “Where am I?” said the balloonist.

            “You’re in a field,” said the lawyer.

The grain of truth in this ancient joke—that lawyers sometimes provide advice or information that is correct but of limited value—may apply to Supreme Court Justice Samuel Alito’s preemptive June 21 Wall Street Journal column titled “ProPublica Misleads Its Readers” objecting to a ProPublica story about Alito’s acceptance of an Alaskan fishing trip from hedge fund tycoon Paul Singer. 

The ProPublica story can be seen

Alito’s column ran hours before ProPublica’s story ran.  Here it is:

ProPublica has leveled two charges against me: first, that I should have recused in matters in which an entity connected with Paul Singer was a party and, second, that I was obligated to list certain items as gifts on my 2008 Financial Disclose Report. Neither charge is valid.

• Recusal. I had no obligation to recuse in any of the cases that ProPublica cites. First, even if I had been aware of Mr. Singer’s connection to the entities involved in those cases, recusal would not have been required or appropriate. ProPublica suggests that my failure to recuse in these cases created an appearance of impropriety, but that is incorrect. “There 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” (Statement on Ethics Principles and Practices appended to letter from the Chief Justice to Senator Durbin, April 25, 2023). No such person would think that my relationship with Mr. Singer meets that standard. 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. 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.

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. See Sup. Ct. R. 10. To ensure that I am not required to recuse, multiple members of my staff carefully check the names of the parties in each case and any other entities listed in the corporate disclosure statement required by our rules. See Supreme Court Rule 29.6. Mr. Singer was not listed as a party in any of the cases listed by ProPublica. Nor did his name appear in any of the corporate disclosure statements or the certiorari petitions or briefs in opposition to certiorari. 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. The entities that ProPublica claims are connected to Mr. Singer all appear to be either limited liability corporations or limited liability partnerships. 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.

• Reporting. 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. See, e.g., Random House Webster’s Unabridged Dictionary of the English Language 690 (2001) (defining a “facility” as “something designed, built, installed, etc., to serve a specific function affording a convenience or service: transportation facilities” and “something that permits the easier performance of an action”). Legal usage is similar. Black’s Law Dictionary has explained that the term “facilities” may mean “everything necessary for the convenience of passengers.” Federal statutory law is similar. See, e.g., 18 U.S.C §1958(b) (“ ‘facility of interstate commerce’ includes means of transportation”); 18 U.S.C §2251(a) (referring to an item that has been “transported using any means or facility of interstate commerce”); Kevin F. O’Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice and Instructions §54.04 (February 2023) (“the term ‘uses any facility in interstate commerce’ means employing or utilizing any method of . . . transportation between one state and another”).

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.

In brief, the relevant facts relating to the fishing trip 15 years ago are as follows. 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. Since my visit 15 years ago, the lodge has been sold and, I believe, renovated, but an examination of the photos and information on the lodge’s website shows that ProPublica’s portrayal is misleading.

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. Had I taken commercial flights, that would have imposed a substantial cost and inconvenience on the deputy U.S. Marshals who would have been required for security reasons to assist me.

Taking Justice Alito at His Word(s)

The essence of Alito’s detailed arguments is (1) while he knew Paul Singer, he had “no good reason” to know of Singer’s connections to matters before the Court and thus was not required to recuse himself in any of those proceedings, (2) the “personal hospitality” exclusion relieved Alito of reporting obligations on his 2008 Financial Disclosure Report about his Singer-provided fishing trip to Alaska and, (3) ProPublica‘s description of the accommodations at the fishing lodge was misleading.

The column reveals much about Alito’s view of his role on the Court.  It also illuminates the debate over the ethics of justices accepting luxury travel, or similar experiences, from wealthy and powerful people with actual, or potential, interests before the Court.

 Alito argues that the standards for recusal and reporting show he was not obligated to do either.  His engagement with the media about these events suggests that in his mastery of the details he may win, at least in his mind, this particular battle.  However, it is almost certain that he is helping to lose the larger war, which so concerns Chief Justice Roberts, about the Court’s public image and its place in the American system of government.

The Recusal Standard and How it Applies Here

Alito, like most lawyers, makes his strongest argument first, asserting that the recusal standard is whether a reasonable person with knowledge of the facts would doubt that a Justice could fairly discharge his or her duties.  Recusal is not an admission of weakness or a moral shortcoming.  The option to recuse provides judges with an off-ramp in situations where outsiders, not the judge in his or her own mind, might doubt that a judge would be unbiased.  For example, Justice Ketanji Brown Jackson recused herself in Students for Fair Admissions Inc v. President and Fellows of Harvard College, the case challenging Harvard’s admissions process because of her service on Harvard’s Board of Overseers.

 The column adds an additional element to the test for recusal: whether a justice had “good reason to know” that someone with whom the Justice had a personal relationship was connected to a Supreme Court litigant.  This shifts the analysis away from what an outsider, “an unbiased and reasonable person,” might perceive.  The column argues that the real standard of conduct should involve what Alito knew or could reasonably have known about Singer and his business interests.

The paragraph that begins, “Second, when I reviewed the cases in question…,” argues against recusal by reciting facts showing that Alito did not know of, and could not reasonably have been expected to know of, Singer’s connections to cases before the Court. If ever there was an argument that proved, or protested, too much, this is it.  The detailed arguments suggest that Alito knows that his acceptance of the fishing trip requires legalistic justification.

Judges have an internal alarm system that goes off when a case comes before them that might require recusal.  The column’s peevish tone suggests that Alito’s internal alarm may not trigger except in extreme cases.

The Personal Hospitality Reporting Exemption and How it Applies Here

Alito argues that he had no duty to report the Alaska trip on his disclosure form because the instructions for the disclosure form provide:

‘[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 . . .’

The column argues that the failure to report the Alaska trip is excusable because, in Alito’s world, “everybody did it.”

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.

This sentence may be the strongest argument possible for a Supreme Court code of ethics.  Alito shows that the justices convinced themselves that accommodations and travel, no matter from whom or how luxurious, for social activities were not reportable. This was their standard of conduct because they said so.

A common sense reading of the personal hospitality exclusion is that it was intended to relieve the justices of reporting the acceptance of, say, a hot dog and a beer at a cookout at a neighbor’s home.  Instead, what the justices “commonly interpreted” became a license for extensive mooching paid for by some of the nation’s most wealthy and powerful people.

The extended length at which the column asserts that a “facility,” in the language of the disclosure form, is a “means of transportation” is another example of proving too much.  If reality-based Americans were asked, “Should a Supreme Court Justice be excused from reporting the acceptance of a gift of luxury transcontinental air travel to go fishing in Alaska because the trip qualifies as a “facility” in a definition on a reporting form?” a significant majority would answer, “No” or a variation of it. [1]

The Law of Unintended Consequences, Again

We end where we began, with the lawyer who advised the lost balloonist.  Like that lawyer, Alito may be technically correct, but he misses more important matters. In the debate about the adoption or imposition of a Supreme Court code of ethics Alito’s column may have the unintended effect of building momentum for an ethics code.  The column goes well beyond the point at which the most carefully constructed legal arguments are overcome by the common sense and fairness standards of the court of public opinion. 

            Your comments are very welcome.

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[1] Would the better decision have been for Alito to say nothing about ProPublica’s story? Alito’s initial instruction to the Court’s public information officer was that he would have no comment. In an April Wall Street Journal interview he complained, “We [the Supreme Court] are being hammered daily, and I think quite unfairly in a lot of instances.  And nobody, practically nobody, is defending us.” Dealing with the media sometimes requires difficult choices. Consider how different things might look if Alito had either stayed with his “no comment” position or directed the Court’s public information officer to issue a statement along these lines:

ProPublica has pointed out that the gift of a trip I accepted under standards that applied 15 years ago might be considered problematic today.  I have accepted no such trips since then nor will I accept any during my remaining service on the Court.