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Supreme Court Justice Samuel Alito's ethics come into question with ProPublica report

JUANA SUMMERS, HOST:

Let's turn now to a story about ethics and the Supreme Court. It involves a conservative justice, but not Justice Clarence Thomas. Last night, ProPublica published an extensive story about a high-end, all-expense-paid fishing trip to Alaska, including private jet travel, that was not disclosed by Justice Samuel Alito.

NPR legal affairs correspondent Nina Totenberg joins us now. Hi there.

NINA TOTENBERG, BYLINE: Hi there.

SUMMERS: So Nina, once again, ProPublica broke this story, and it's backed up by a good deal of documentation. What can you tell us about it?

TOTENBERG: Well, according to the ProPublica report, in 2008, Alito went on this trip to Alaska with hedge fund billionaire Paul Singer, who's a big Republican donor and has repeatedly had cases before the Supreme Court. The justice traveled to the remote Alaska site on Singer's private jet, along with Leonard Leo, a longtime leader of the conservative Federalist Society, who helped organize the trip. And the salmon-fishing lodge that they all stayed at was owned at the time by another big Republican donor, Robin Arkley II, who footed the bill for Alito's lodging.

Now, fishing is not the major occupation of any of these folks. Singer has earned a reputation as an aggressive, litigious hedge fund owner who, according to ProPublica, has had cases appealed to the Supreme Court 10 times, with one of them decided in Singer's favor in 2014 by a 7-1 vote.

SUMMERS: And I take it that Alito did not recuse himself in these cases, and he did not report the travel on his financial disclosure form. But he did have something of a prebuttal in The Wall Street Journal. Is that right?

TOTENBERG: That's correct. He didn't recuse. He didn't disclose. But he didn't respond to ProPublica's questions. But he has not been silent, Juana. In a column published last night online on the conservative editorial page of The Wall Street Journal, he issued what amounts to a prebuttal, saying several things - first, that he had no obligation to recuse himself from any of these cases involving Singer's hedge fund because he only knew Singer casually, had never discussed anything about legal issues with him and didn't even realize that Singer was connected to any Supreme Court case as his name is nowhere mentioned in the briefs.

SUMMERS: Is that true that Singer's name is not on the papers on this case?

TOTENBERG: That's true. But his name was widely linked to the case in the popular press as he is the founder, president and co-CEO of the hedge fund that is one of the parties in this case.

SUMMERS: OK. So should Alito have recused himself under the code of judicial ethics?

TOTENBERG: The code says judges should recuse when there is the appearance of impropriety, meaning an unbiased and reasonable person who's aware of all the relevant facts would doubt that the justice could fairly discharge his or her duties. And Alito says that no such reasonable person would think that he should have recused. Others, I should say, including some ethics professors, don't see it that way.

SUMMERS: And, Nina, what types of laws or ethics rules are justices held to when it comes to reporting trips like this?

TOTENBERG: I talked to University of Virginia professor Amanda Frost, who specializes in legal ethics. And she said that the ethics law then, and still is, very clear about the disclosure of free transportation like this. It had to be disclosed as a gift, and it wasn't.

AMANDA FROST: The statute itself is clear, and the justices can be very harsh on litigants who fail to follow statutory language. So I think they should hold themselves to that same standard.

TOTENBERG: The only exemptions to the statute back in 2008, she said, were food and lodging, but not travel. And even the food and lodging exemption caused enough raised eyebrows - the way it was interpreted by some judges - that the Judicial Conference of the United States clarified the rule this year to explicitly say personal hospitality does not include hospitality extended at a commercial property, such as a resort. It's only hospitality at the personal residence of an individual or his or her family property - in short, no business property.

Justice Alito, in his column, says he understands this guidance to be new, and he intends to follow it. But even if you concede that the new guidance is more specific than before, the old rule was crystal clear about disclosing private jet travel. And the Supreme Court has long agreed that its members are obligated to follow the financial disclosure laws.

SUMMERS: Nina, we've got just a couple seconds left. Why do some of the justices seem to have such difficulty following these rules?

TOTENBERG: I put that question to professor Frost.

FROST: They are used to standing above the law and not being scrutinized for their actions. And I think, for that reason, they became sloppy. I think the second problem is that they just weren't being conscious enough of the fact that these sorts of gifts are being given to them based on their position and in order to claim influence over them, even if it wasn't true.

SUMMERS: That was NPR's legal affairs correspondent Nina Totenberg. Thank you.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

Nina Totenberg
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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