Visits: 20
Editor’s note: Justin Elliott and Josh Kaplan of ProPublica, which styles itself “an independent, nonprofit newsroom that produces investigative journalism with moral force,” emailed Justice Alito Friday with a series of questions and asked him to respond by noon EDT Tuesday. They informed the justice that “we do serious, fair, accurate reporting in the public interest and have won six Pulitzer Prizes.” Here is Justice Alito’s response:
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.
Justice Alito is an associate justice of the U.S. Supreme Court.
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