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.
“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.”
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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