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Civics: ProPublica Misleads Its Readers

Samuel A. Alito Jr.

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 ac­com­mo­da-tions 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.

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ProPublica styles itself as “an independent, nonprofit newsroom that produces investigative journalism with moral force.” Let me translate “moral force” for you: ambushing conservatives with misleading accounts of dated accusations that, at worst, concerned good faith attempts to comply with the rules. I’ve lost count of the number of times that wild accusations against Justice Thomas have fallen apart. I think the only upshot of this breathless reporting is that the public has become tired/bored/numb to this “moral force.”

ProPublica’s latest research target is (you guessed it) Justice Alito. On Friday, ProPublica contacted Justice Alito, and asked him to respond to questions by a deadline of noon EDT Tuesday. Justice Alito provided such a response–in the Wall Street Journal.

Alito’s decision was a masterstroke. Rather than providing comments to ProPublica, which can be cherry-picked and quoted out of context, Alito spoke directly to the public. Indeed, I long ago decided that if any outlet were running a hit job on me, and asks me for comment, I would pre-empt their story and post my reply on the blog. Alas, most of the hit jobs on me never bother seeking comment. But such is life.

Propublica funding:

“It is no coincidence that several organizations smearing Justice Thomas are funded generously by many of the same donors,” Parker Thayer, an investigative researcher at Capital Research Center, told the DCNF. “The ‘pop-up’ public pressure campaign, where just a few donors pay dozens of ‘grassroots’ activist groups to give the appearance of broad public support for a particular issue, has long been a favored tactic of the Left’s wealthy special interests.”

The Sandler Foundation, which launchedProPublica in 2007 and is the news outlet’s largest donor, has given it almost $40 million since 2010 for general support. The Sandler Foundation has also given over $7.5 million to the Campaign Legal Center (CLC) since 2015 and over $6 million to American Constitution Society (ACS) for general support since 2010, according to tax forms.

The Sandler Foundation was formed by Herbert and Marion Sandler, who, according to Forbes Magazine, “instituted borrowing practices that were largely blamed for the housing market collapse.” Time Magazine listed the Sandlers among the “25 People to Blame for the Financial Crisis.”

CLC wrote a letter to the Judicial Conference in April requesting the body refer Thomas to the Department of Justice (DOJ) “for potential criminal and civil penalties” after ProPublica reported that Thomas did not disclose expense-paid trips he took with Crow—allegations that legal experts told the DCNF did not demonstrate wrongdoing. American Constitution Society President Russ Feingold backed this call for a DOJ investigation in April, and he argued Congress “has a duty to check the Supreme Court” by imposing ethics rules and “rigorously investigating violations of federal law and flagrant ethics lapses.”

Glenn Reynolds

Another day, another hit piece on the Supreme Court, this time with ProPublica targeting Justice Samuel Alito. 

A few weeks back, commenting on a substanceless media attack on Justice Clarence Thomas, law professor Josh Blackman commented, “Wait for the next empty shoe to drop.”

Well, here it is. And honestly it’s not much of a shoe. Nor even a flipflop.

Since the Supreme Court shifted right, media coverage has, well, flip-flopped from hagiography to hit pieces fast enough to make your head spin. 

When the court was reliably liberal, things like Justice Hugo Black’s fomer Klan membership, or William O. Douglas’ history of sexual misbehavior and shady connections to Vegas “businessmen” didn’t matter. 

Now that it’s leaning the other way, the press has stopped swallowing camels and started straining at gnats

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