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Thursday, June 22, 2023

Is There a Culture of Concealment at the Supreme Court?

My new column at The Hill explains why Justice Samuel Alito’s defensive oped in the Wall Street Journal just digs him in deeper to the ethical morass at SCOTUS. Here is the gist:

Alito, Thomas and the Supreme Court’s culture of concealment

Supreme Court Justice Samuel Alito’s recent Wall Street Journal op-ed was revelatory, although not in the way he intended. Instead of defusing an impending Pro Publica article about his associations with a billionaire hedge fund manager, Alito provided a virtual outline of problems with the Supreme Court’s ethics practices.

The basic facts are not in dispute. In 2008, Alito spent three days at a luxury fishing camp in Alaska as a guest of the owner, Robin Arkley II, a wealthy Republican donor. Other guests included Federalist Society leader Leonard Leo, who organized the trip, and Paul Singer, another major Republican donor. Alito flew to Alaska on Singer’s private jet.

As reported by Pro Publica, Alito did not include either the lodging or jet travel on his annual financial disclosure statement.

Full disclosure of extravagant gifts should be a justice’s default position, rather than a grudging concession made only when there is no alternative. Alito, however, asserts that he followed the “standard practice” of the Supreme Court. If so, Alito has unwittingly revealed a culture of concealment that can only damage the Court’s declining reputation.

Alito can argue the finer points of disclosure and recusal, but there is a greater issue involving the justices’ ready acceptance of lavish gifts from wealthy and politically active benefactors. Alito and Thomas, and perhaps others yet unknown, have not hesitated to vacation on the tab of the super-rich, rationalizing that they avoid talking law with their hosts, who, they assure themselves, do not have cases before the Court.

But influence does not arise only from outright favor-trading. Even when they are not parties to litigation, successful investors and industrialists have economic interests that are powerfully affected by many Supreme Court rulings. Justices who have enjoyed the trappings of wealth may identify, consciously or otherwise, with the welfare of their moneyed companions.

The Federalist Society’s Leonard Leo insists that Justice Alito is so “strong-willed and independent” that he could never be influenced by a “free plane seat or fishing trip.” Well, he would say that, wouldn’t he?

You can read the entire piece at The Hill.

Posted by Steve Lubet on June 22, 2023 at 01:10 PM | Permalink


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