The Supreme Court ethics crisis continues, not with Clarence Thomas but with his right-wing comrade, Justice Samuel Alito.
In 2008, according to a recent ProPublica investigation, Justice Alito took a trip to a more-than-$1,000-a-night luxury resort in a remote region of Alaska, arriving there on the private jet of Paul Singer, a billionaire hedge fund manager and Republican donor. If Alito had chartered the jet on his own dime, it could have cost him more than $100,000 for a one-way trip. Alito, however, flew for free.
Six years later, in 2014, Alito voted in Singer’s favor in a dispute between Singer’s hedge fund and the nation of Argentina. “The hedge fund was ultimately paid $2.4 billion,” according to ProPublica.
In an unusual essay for The Wall Street Journal, Alito insisted that there was no corruption or undue influence. He said he had only spoken to Singer on a handful of occasions before the case in question and that his seat on the flight was of no ethical concern because it was “a seat that, as far as I am aware, would have otherwise been vacant.”
As for the trip, Alito wrote that he stayed in a “rustic” and “modest one-room unit,” that the meals were “home-style fare” and that if there was wine served, “it was certainly not wine that costs $1,000.” Alito was adamant that he had no obligation to disclose any trip that he might have taken and that the facts at hand “would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially.”
Judging from the trips and gifts they have received, both Alito and Thomas appear to have been beneficiaries of something like a billionaire buddies program, in which they’re paired with a particularly generous friend. I say “paired” because these connections aren’t as spontaneous as they may seem.
If there is an evergreen presence in these stories concerning the court’s ethical entanglement, it is Leonard Leo, one of the longtime leaders of the Federalist Society, a conservative legal organization. Leo helped organize Alito’s fishing trip with Paul Singer; he can be seen (in a painting commissioned for the Texas billionaire Harlan Crow) vacationing with Clarence Thomas; and he was responsible for steering tens of thousands of dollars in consulting fees to Thomas’s wife Ginni. Last year, Leo turned his influence and ties into a $1.6 billion gift from a single donor to his Marble Freedom Trust — quite possibly the largest political donation in American history.
There’s no mystery to solve about Leo’s goals. He wants a conservative court to construct a conservative Constitution for the sake of a more conservative political order. But there is still a question to answer about his techniques and methods: What, exactly, is the nature of his relationship with Thomas, Alito and the other conservative justices on the Supreme Court, to say nothing of the federal judges he helped select and place as an adviser to President Trump?
Here, I have a few thoughts.
Imagine for a moment that you are a conservative political activist with an abiding interest in constitutional law. You consider yourself an “originalist” or a “textualist” and oppose much of the constitutional jurisprudence of the 20th century, from the affirmation of deep federal intervention into the economy during the New Deal to the expansion of rights of bodily autonomy and personal freedom in the 1960s and ’70s. You want to rewind — to turn the constitutional clock to where it was before the age of liberalism.
You have set your sights on the Supreme Court and the federal judiciary writ large. You have made it your mission to bring the court back to first principles or at least your first principles.
You did the hard work of political transformation and institutional change. You cultivated allies, created networks of like-minded individuals, recruited aspiring judges and politicians to the cause and most important, you won elections. After more than a decade of struggle, despite the occasional setback, you had all the pieces in place: a conservative majority on the Supreme Court and a chance to undo Roe v. Wade.
And then it all fell through. Your conservative justices weren’t as reliable as you thought. They weren’t a single bloc. And three of them voted, against your hopes and expectations, to protect the constitutional right to an abortion. Yes, they might have opened the door to new limits, but what mattered most in 1992 — after 12 years of conservative rule — was that Roe still stood.
But this was just a battle — you could still win the war. So you regroup. You work and wait in anticipation of the time when you can replace your sometime friends on the court with more reliable conservatives. You won’t rely on a sense of mission or commitment to ensure loyalty among the judges and justices, no, you’ll resist the drift toward judicial independence by strengthening the ties between the men (and occasionally the women) and the movement. You’ll hold lavish events in their honor, give them awards, fund schools in their names, help their spouses find work and pair them off with a donor or two so they can have a taste of the high life.
This isn’t quid pro quo — no one is trading favors or taking cash for judicial decisions — it’s like-minded people enjoying one another’s company and friendship. It is showering the most important allies you have with prestige and, crucially, the esteem of their peers. It’s creating a web of personal and emotional bonds in addition to political and intellectual ones.
Your beneficiaries are already on your side, of course — otherwise they wouldn’t be in the club in the first place — but they might be a little less willing to buck the views and prevailing sentiments of their fellow travelers. And if all this social scaffolding means that your justice is a little more likely to cast the right vote in the right case at the right time, then it is money well spent. Even better, there is more where that came from: more billionaires, more influence and more perks for the justices to enjoy while they attend to the work they were appointed to do.
Our hypothetical activist here is a mishmash of figures — Leonard Leo is too young to have been involved in the first phase of the conservative legal movement, leading up to the partial defeat of Planned Parenthood v. Casey. But Leo, who is responsible for at least a third of the membership of the current Supreme Court, is our pioneer. He is the one who figured out the solution to the problem of the independent justice.