ProPublica revealed late Tuesday night that Supreme Court Justice Samuel Alito took a luxury vacation in 2008 costing upwards of $100,000, all on the dime of Paul Singer, a conservative hedge fund manager who later had business before the court at least 10 times. Alito did not recuse from these cases and often sided with Singer. The story echoes ProPublica’s earlier reporting on Supreme Court Justice Clarence Thomas.
About five hours before ProPublica’s story went live, Alito published an op-ed in The Wall Street Journal accusing ProPublica’s then-unpublished story of being misleading. He argued that no “unbiased and reasonable” person would believe that his all-expense-paid vacation could influence his adjudication in Singer’s cases and, furthermore, that he didn’t even know Singer was a figure in those cases in the first place.
Now, both of these arguments are obviously ridiculous. Any “unbiased and reasonable” person would absolutely believe that being offered a free private jet flight and a stay at a fancy rustic lodge would leave an impression. (For what it’s worth, that phrase comes not from the law, but from the statement the Justices sent Senate Judiciary Chair Dick Durbin instead of testifying about Thomas’ scandals.) And if Alito truly didn’t know Singer was behind the relevant hedge fund, that means Alito does absolutely no preparation before considering cases, which is damning in itself. Moreover, as Above The Law points out, Alito’s op-ed also all but confirms that he was behind the leaked Dobbs decision last year.
But even aside from the op-ed’s content, let’s take a step back and consider what it means for a Supreme Court Justice to respond to questions for a news article by publishing an angry opinion piece in a (very) different publication than the one which contacted him, and apparently without informing the journalists ahead of time.
Alito’s op-ed is clearly an attempt to “get out ahead” of an embarrassing story, a classic public relations move with the goal of confusing the public about what the “real” story is: is it the complex investigative reporting, or the angry back-and-forth between journalist and subject? If the public thinks the “controversy” is a bunch of he-said she-said, then the public isn’t thinking about the actual revelations.
It’s bad enough for politicians or pundits to use this tactic to protect themselves from embarrassing stories. But in theory, Supreme Court justices are supposed to be rigorously neutral actors, who refuse to let their personal biases influence the hearings they grant to the public. As legal elites’ endless paeans to the Court can tell you, that’s important to maintaining the Court’s legitimacy: the public needs to accept the Court’s rulings even when they disagree with the content, so maintaining neutrality is how the Justices build trust with the public.
By publishing this op-ed, Alito has dropped any illusion of caring about that trust. He is signaling to the country how he should be seen—and how he sees himself: as a partisan political actor, who does what political actors do when in hot water.
Consider the good-faith case for Alito’s actions. If Alito’s op-ed wasn’t trying to muddy the story, it would mean that he thinks ProPublica — an award-winning, highly respected, non-partisan news outlet — was so dead-set on falsely accusing him of corruption that he was sure they wouldn’t even publish his side of the story, and he simply needed to defend his good name by going behind their backs.
This is absurd. For one, as a judge, Alito knows that he has recourse if ProPublica knowingly published information about him which was actually wrong. He could sue them for libel. But he hasn’t, and nothing in his Journal op-ed actually refutes any of the claims ProPublica makes about him. (In public relations terms, the op-ed is a “non-denial denial.”) Alito is the victim of a vicious witch hunt by ideological propagandists…but also, everything they say about him is true.
Moreover, Alito could have asked ProPublica to publish his op-ed on their site, which they likely would have obliged — they’ve published full statements from Harlan Crow and other reporting subjects in the past. Bringing his op-ed to a beachhead conservative outlet (and one which Alito heavily favors) is clearly an effort at political signaling: conservatives, one of your own is under attack.
Alito’s actions make no sense unless you understand that he is a movement conservative, who does what movement conservatives do when they feel under attack by basic scrutiny. This is yet more strong evidence that SCOTUS justices ought to be covered like the political actors they are, not as the high-minded philosopher-kings. Let this be another mark in favor of broadly rethinking how to cover SCOTUS.
Supreme Court reporters looking to redeem themselves would do well to consider how institutional corruption takes many forms besides straightforward quid pro quo bribery. Wealthy benefactors like Crow and Singer don’t just present conflicts of interest on their particular cases; they shift their patrons’ lifetime incentives. If Thomas or Alito know that they can get whatever money they want as long as they’re on the Court, they’ll be less inclined to retire, and less hesitant about forcing their ideology onto the public.
Moreover, the conservative legal movement has spent decades on a concerted strategy to isolate conservative justices from any social forces which might make them doubt the cause. The Federalist Society and other institutions don’t just train and indoctrinate right-wing lawyers; they offer a social scene and intellectual milieu fully insulated from non-conservative society. This is deliberate; after Reagan and Bush appointees like Sandra Day O’Connor and David Souter became more moderate after reaching the Supreme Court, conservative legal activists realized they needed to keep their judges fully enmeshed in the cause even after swearing their oaths.
Since then, millions of dollars and years of work have gone into neutralizing intra-elite social shame as a force with any influence on conservative judges. The rest of the country may think Alito, Thomas, and their peers are despicable, but if everyone they socialize with thinks they’re the good guys, then what does it matter to Alito or Thomas what the rabble believe?
We need journalism which demystifies social elements like this, alongside exposing financial relationships and exploring why the judges are the way they are — their histories, their social lives, their resentments, and their ambitions. All of this is common practice for covering politics or business, and it gives the public a much better understanding of those institutions. If, as Alito’s op-ed demonstrates, the Supreme Court justices are political hacks, let them be treated as political hacks.
The above photo is a work of the U.S. federal government and in the public domain.
