NRPLUS MEMBER ARTICLE T he ongoing and obviously coordinated progressive assault on the Supreme Court’s public legitimacy has moved on again to a new target: Justice Samuel Alito, the author of Dobbs v. Jackson Women’s Health Organization. ProPublica, the dark-money-funded left-wing group at the center of the current “ethics” barrage, published a report on an Alaskan fishing trip taken by Alito in 2008. Having been contacted by ProPublica, Justice Alito responded in advance of publication with his own op-ed in the Wall Street Journal.

We should start by dispensing with the pretense that this campaign against the conservative justices and the conservative legal movement is being waged in good faith or with genuine concern about ethics. It has instead been characterized by comically flimsy hit pieces, bad analogies that whitewash history, and dishonest character assassination. There is a long history of liberal and progressive judges finding implausible justifications to avoid recusal in hot-button cases, a history which continues into the biggest case of this term and is generally defended or ignored by legal commentators on the left. The institutional apparatus of universities, bar associations, journalism, and left-leaning foundations has long surrounded the justices with comfortable influences pulling them leftward, especially on social issues, and much of the current angst is about the breaking of that monopoly. You won’t find these same outlets investigating the liberal justices’ social circles or the deficiencies of their financial disclosures.

Moreover, many of the charges are coming from the same people who insist that it’s no big deal that the president’s family is receiving millions of dollars from Chinese and Ukrainian companies, routed through concealed shell accounts. Nothing to see here! Surely, no issues relating to China or Ukraine are likely to come across Joe Biden’s desk any time soon.

No, what is going on is an effort by progressives to do to the Supreme Court what Donald Trump tried to do to our presidential-election system after 2020, and for roughly the same reason: If they can’t get the results they like, they will do whatever it takes to burn down the institution’s public legitimacy. They will do so even if it means breaking the law, and even at the risk of triggering violence against public officials. As I noted in my overview in the magazine:

Alito has said that he believes the [Dobbs] leaker was trying to stop the opinion from issuing and that this made the justices “targets of assassination” requiring round-the-clock security. Gangs of protesters camped outside the homes of the conservative justices, and the Biden administration ostentatiously refused to enforce laws criminalizing such protests aimed at judges. An armed man enraged by the leaked draft showed up at Kavanaugh’s house intending to assassinate him but got cold feet upon seeing the home guarded.

My view of ethics reforms now is the same as my view of election-integrity reforms in December 2020: We can talk about that once the assault is over. But not before then.

The progressive objective, openly stated by a number of these groups, is to build support for Court-packing or similar efforts to either break centuries of precedent dictating how the Court is staffed or encourage the government to defy the Court’s rulings. Sheldon Whitehouse’s “ethics” bill, for example, would allow any disgruntled member of the public to initiate proceedings that would paralyze the Court and subject its justices to discipline by the very lower-court judges whose decisions they review — with the attendant deterrent effect on correcting lower courts.

Hitching with Billionaires

That brings us to the big “scandal” of the day: 15 years ago, Justice Alito went fishing in Alaska, and attendees on the trip included billionaire Paul Singer. It was, to be sure, a fancy, expensive trip, but Alito was there as a guest of another conservative donor who, as ProPublica concedes, “does not appear to have been involved in any cases before the court.” It was the first time Alito had met Singer. Singer was taking his private jet to the event, and gave Alito a ride there and back, saving the justice the cost of a commercial plane ticket and saving the government the cost of sending security with him on a commercial flight.

Alito did not conceal the trip. The following year, after Singer introduced him at the headline dinner for the Federalist Society’s annual convention, Alito discussed the fishing trip in front of a ballroom full of “dozens of journalists and over 2000 people,” as Leonard Leo has put it. David Lat, then writing at Above the Law, published an account at the time that quoted Alito talking about being in the wilds of Alaska with Singer. Singer has introduced Alito at other events, but there is no indication that they have spent much time together otherwise, or that Alito has accepted hospitality from Singer on other occasions.

Alito did not report the flight on his financial-disclosure forms, but as he noted in his Wall Street Journal op-ed, the rules until very recently were uniformly understood not to require any such disclosures:

Until a few months ago, the instructions for completing a Financial Disclosure Report told judges that “[p]ersonal hospitality need not be reported. . . .” 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. . . . 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.

Judge A. Raymond Randolph, who was on the same fishing trip, told ProPublica that he sought disclosure advice at the time and concluded that the trip didn’t require disclosure — and he kept his notes:

Randolph, now a senior judge on the U.S. Court of Appeals for the D.C. Circuit, did not disclose the trip. (Nor did he disclose the later trip with Alito.) Randolph told ProPublica that when he was preparing his form for 2005, he called the judiciary’s financial disclosure office to ask about disclosing the trip. He shared his notes from the call with a staffer, which say “don’t have to report trip to Alaska with Rob Arkley & others / private jet / lodge.”

This sort of travel is not uncommon, which is why neither Alito nor Clarence Thomas nor any of the other justices seem to have considered it the source of a significant conflict of interest. Between 2004 and 2018, just counting the trips that were covered by the disclosure rules, justices disclosed taking 1,306 trips that had been reimbursed by others, according to OpenSecrets:

Justice Ruth Bader Ginsburg disclosed taking more trips than any other justice in 2018, totaling 14. She visited Tel Aviv, Israel where she was awarded a lifetime achievement award by the Genesis Prize Foundation. Shortly following the award ceremony, she disclosed being provided transportation, food and lodging as a tourist and guest of billionaire Israeli businessman Morris Kahn.

Kahn has had business before the Supreme Court before. The high court handed Kahn’s company Amdocs Limited a win in November 2017 when it declined to take up a patent-related case.

Per the Center for Public Integrity, six of the Supreme Court’s nine members received paid trips to Europe in 2014, including to Berlin, London and Zurich — and “New York University also paid for Sonia Sotomayor and Ruth Bader Ginsburg to travel to Florence, Italy.” In 2012, “Ginsburg traveled to New York to accept Glamour Magazine’s Woman of the Year award, which came with a gift bag valued at $2,500.” You may think this is too much hobnobbing, but the volume of it also suggests that no justice is all that likely to be influenced in any particular case by one of the many patrons of this sort of travel.

Ginsburg was especially known for her open alliances with advocacy groups appearing before the Court. Such groups are quite differently situated than the Federalist Society, which does not file advocacy briefs in the courts. In 2014, she appeared “before the International Women’s Health Coalition, a group that advocates for reproductive rights.” As the Los Angeles Times reported in 2004:

Supreme Court Justice Ruth Bader Ginsburg has lent her name and presence to a lecture series cosponsored by the liberal NOW Legal Defense and Education Fund, an advocacy group that often argues before the high court in support of women’s rights that the justice embraces.

In January, Ginsburg gave opening remarks for the fourth installment in the Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law. Two weeks earlier, she had voted in a medical screening case and taken the side promoted by the legal defense fund in its friend-of-the-court brief.

Of course, Ginsburg had her defenders at the time:

“This is a judgment call. We have to be careful here,” said New York University law professor Stephen Gillers, an expert on legal ethics. “Some might say judges should lead monastic lives, but I don’t believe that. I think judges and justices should participate in broad legal debates, but within restraints.”

Argentine Bonds

ProPublica criticizes Alito for not recusing himself from cases involving entities tied to Singer. Most of these were petitions for certiorari, and anyone who knows how the Court works understands that most cert petitions are read only by the clerks and disposed of without controversy by a unanimous Court. That’s not because the Court somehow fails to take its job seriously, but because there are commonly a lot of cases brought to its steps that have no business there, and can easily be identified as such.

The one case that involving Singer’s litigious hedge funds that made its way before the Court on its merits was Republic of Argentina v. NML Capital, a 2014 Foreign Sovereign Immunities Act case involving Argentine sovereign debt. The case wasn’t close; the Singer-related fund won 7–1, with Sotomayor recusing herself (it is not clear why, but Sotomayor had been involved in related cases in the Second Circuit — a common basis for recusal that I’ve criticized in the past as silly). Given the high threshold for recusals at the Supreme Court level, where absent judges cannot be replaced, it’s debatable whether Alito should be recusing himself from cases for the rest of his life based upon hitching a single round-trip plane ride.

Moreover, even if Alito should arguably have recused himself for all time from Singer-related cases, the court papers in the case also didn’t disclose — and weren’t legally required to disclose — that the NML Capital fund was a Singer vehicle. ProPublica makes much of the fact that this was reported in the financial press, but with nearly 100 docketed cases every year before the Court, it’s easy for justices to miss the media coverage if there’s no disclosure in the court filings.

The absence of formal disclosure was proper and standard: It happened because Singer himself didn’t own a stake in NML Capital that required disclosure of his role. Let me explain the working of the disclosure rules, which are aimed at alerting judges to potential conflicts, and which every decent corporate litigator handles with diligent labors. (I say this having once managed a Supreme Court filing on behalf of eleven different Wall Street firms, each with its own tangled web of parent companies.) Supreme Court Rule 29.6 provides:

Every document . . . filed by or on behalf of a nongovernmental corporation shall contain a corporate disclosure statement identifying the parent corporations and listing any publicly held company that owns 10% or more of the corporation’s stock.

While Rule 29.6 is a Supreme Court-specific rule, it’s identical to the general rule for disclosures by a corporation in any federal court. Federal Rule of Civil Procedure 7.1 provides:

A nongovernmental corporate party . . . must file a statement that: (A) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or (B) states that there is no such corporation.

Rule 26.1 of the Federal Rules of Appellate Procedure is the same:

Any nongovernmental corporation that is a party to a proceeding in a court of appeals must file a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or states that there is no such corporation.

The Court’s own precedents concerning the Foreign Sovereign Immunities Act stress that, when interpreting rules about controlling shareholders, federal courts will look to the formalities of shareholding rather than digging into the corporate family tree for who might have a stake that doesn’t meet the formal thresholds for disclosure. As the Court explained in Dole Food Co. v. Patrickson (2003), when a rule speaks of a specific level of share ownership, that’s what matters:

A basic tenet of American corporate law is that the corporation and its shareholders are distinct entities. . . . An individual shareholder, by virtue of his ownership of shares, does not own the corporation’s assets and, as a result, does not own subsidiary corporations in which the corporation holds an interest. . . .

Majority ownership by a foreign state, not control, is the benchmark. . . . The statutory language will not support a control test that mandates inquiry in every case into the past details of a foreign nation’s relation to a corporate entity in which it does not own a majority of the shares.

In other words, Alito had no reason to be on the lookout for a conflict in NML. Had he seen Singer’s role reported in the financial papers and thought there was a potential appearance of impropriety, he could have chosen to recuse himself. But he wasn’t required to do that. And anybody who wasn’t desperately searching for rocks to throw at conservative justices would admit as much.