You might think a Supreme Court justice would realize that you don’t present the defense until you’ve heard the prosecution’s case.
But apparently Justice Samuel Alito thinks otherwise.
So in an unusual move, Alito wrote an op-ed piece published in the Wall Street Journalon Tuesday evening. It was an angry prebuttal to a ProPublica story that hadn’t been published yet that raised issues about Alito’s ties with hedge fund billionaire Paul Singer.
The opinion piece was headlined: “Justice Samuel Alito: ProPublica Misleads Its Readers.” It turned out to be an embarrassing own goal after ProPublica released its story a few hours later.
ProPublica is the independent, non-profit news website that broke the story about the decades-long relationship between Alito’s fellow conservative Supreme Court Justice Clarence Thomas and Texas real-estate billionaire Harlan Crow that included lavish gifts, paid vacation trips and property deals.It raised calls by Democratic lawmakers for tightening Supreme Court ethics rules.
When it released the story, ProPublica posted a Tweet thatpointed out that Alito was “attacking as unfair a story that he hadn’t read.”
The ProPublica story did include details from Alito’s prebuttal op-ed. The Supreme Court’s head spokesperson had told ProPublica that Alito would not be commenting on the story. But several hours later, his op-ed included his responses to its reporters’ questions.
The ProPublica story is headlined: “Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court.”
Here is how it begins:
In early July 2008, Samuel Alito stood on a riverbank in a remote corner of Alaska. The Supreme Court justice was on vacation at a luxury fishing lodge that charged more than $1,000 a day, and after catching a king salmon nearly the size of his leg, Alito posed for a picture. To his left, a man stood beaming: Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes.
Singer was more than a fellow angler. He flew Alito to Alaska on a private jet. If the justice chartered the plane himself, the cost could have exceeded $100,000 one way.
In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media. In 2014, the court agreed to resolve a key issue in a decade-long battle between Singer’s hedge fund and the nation of Argentina. Alito did not recuse himself from the case and voted with the 7-1 majority in Singer’s favor. The hedge fund was ultimately paid $2.4 billion.
ProPublica added that Alito did not report the 2008 fishing trip on his annual financial disclosures;. Ethics law experts told ProPublica that Alito’s failure to disclose the private jet flight provided to him by Singer appears to have violated a federal law that requires justices to disclose most gifts.
ProPublica then wrote:
Experts said they could not identify an instance of a justice ruling on a case after receiving an expensive gift paid for by one of the parties.
“If you were good friends, what were you doing ruling on his case?” said Charles Geyh, an Indiana University law professor and leading expert on recusals. “And if you weren’t good friends, what were you doing accepting this?” referring to the flight on the private jet.
As a veteran journalist, I can’t stress enough how unusual it is for a newspaper to publish a rebuttal op-ed as a preemptive strike in response to a story that another news outlet had not published yet. And for a Supreme Court justice to do this makes it even stranger. .
In an editor’s note, the WSJ said two reporters from ProPublica had emailed Alito on Friday “with a series of questions and asked him to respond by noon EDT Tuesday.” The newspaper’s opinion page then offered Alito’s response.
Alito wrote:
“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.”
Alito went on to say that he “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.”
Alito said that he had spoken to Singer “on no more than a handful of occasions,” and never discussed any cases before the Supreme Court.
But he did mention going on a fishing trip with Singer in 2008, saying that Singer allowed him to occupy “what would have otherwise been an unoccupied seat on a private flight to Alaska.”
Alito said he reviewed the cases in question regarding whether recusal was required, and said he was not aware and had no good reason to be aware that Mr. Singer had an interest in any party.”
“Mr. Singer was not listed as a party to any of the cases listed by ProPublica,” Alito wrote.
He added that “the entities that ProPublica claims are connected to Mr. Singer all appear to be either limited liability corporations or limited liability partnerships.
He wrote:
“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 did mention one case in which review was granted by the high court, Republic of Argentina v. NML Capital, Ltd. The 2014 case involving Argentine debt was decided by a 7-1 majority. Alito said Singer’s name did not appear in either the certiorari petition, the brief in opposition, or the merits briefs.
Forbes noted in a capsule profile of Singer that the founder of the hedge fund firm, Elliott Management, “famously spent 15 years warring with the government of Argentina over bond payments, which resulted in a $2.4 billion payout to his firm in 2016.’
Alito then went into a very technical legal explanation in which he concluded that personal hospitality “need not be reported” on Financial Disclosure reports. He oddly included a reference to the definition for :facility” from the Random House Webster’s Unabridged Dictionary.
“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.” Alito said.
Alito provided details about his fishing trip to Alaska, saying that he stayed “in a modest one-room unit at the “comfortable but rustic” King Salmon Lodge. He described the meals as “homestyle fare” and couldn’t recall whether the guests were served wine, but emphasized that “it was certainly not wine that costs $1,000.”
ProPublica provided more details about the fishing trip that cast it in an entirely different light than Alito’s rather benign account. For starters, the lodge was described as a luxury fishing resort whose guests included celebrities, wealthy businessmen and sports stars.
ProPublica reported that the Alaska fishing trip was attended and organized by Leonard Leo, the leader of the conservative Federalist Society.Leo invited Singer to join the trip, and asked Singer if he and Alito could fly on the billionaire’s jet, a person familiar with the trip told ProPublica.
Alito’s stay at the large was provided free of charge by its owner Robin Arkley II, the owner of a California-based mortgage company and a major donor to the conservative legal movement, ProPublica reported.. Three years earlier, Arkley had flown conservative Supreme Court Justice Antonin Scalia to Alaska on his private jet and paid to rent out a remote fishing lodge on Kodiak Island that cost $3,200 per week per person, ProPublica reported.
In June 2005, Arkley flew Scalia on his private jet to Kodiak Island, Alaska, two of Arkley’s former pilots told ProPublica. Arkley had paid to rent out a remote fishing lodge that cost $3,200 a week per person, according to the lodge’s owner, Martha Sikes.
The justice’s stay was provided free of charge by another major donor to the conservative legal movement: Robin Arkley II, the owner of a mortgage company then based in California. Arkley had recently acquired the fishing lodge,
A spokesperson for Singer told ProPublica that the hedge fund manager wasn’t aware that Alito would be on the trip when he accepted the invitation and didn’t discuss his business interests with the justice. The spokesperson added that neither Singer nor his companies had any pending matters before the Supreme Court at the time, and that Singer couldn’t have anticipated that a future case would merit Supreme Court review.
ProPublica said that over the last decade, Singer has contributed over $80 million to Republican political groups. He is also a major donor to and chairman of the Manhattan Institute, a conservative think tank that regularly files friend-of-the-court briefs with the Supreme Court.
The Huffington Post noted that Alito’s ethics had been called into question in the past.
Alito’s ethics have been scrutinized in the past. He was previously accused of leaking the outcome of the 2014 Hobby Lobby case, which involved the company’s religious objections to covering the cost of some contraceptives for female employees.
Here are some of the reactions to Alito’s rebuttal to an unpublished story.
Democratic Sen. Sheldon Whitehouse, a member of the Senate Judiciary Committee, said the “weird pre-buttal” raised even more questions, including whether Alito got help from a PR firm, and, if so, who paid?
From Vox senior correspondent Ian Millhiser: “I encourage Mr. Alito to continue publishing his most bitter, paranoid ramblings in the Wall Street Journal.”
A year after the Alaska fishing trip, Singer introduced Alito at the annual dinner at the Federalist Society’s convention, according to ProPublica . Alito recalled a story about their encounter with bears during their fishing trip, according to the legal blog Above the Law. Alito recalled asking himself: “Do you really want to go down in history as the first Supreme Court justice to be devoured by a bear?”
(Updates throughout with details from ProPublica story.)