The Volokh Conspiracy

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Justice Alito Shouldn't Have To Do The Media's Job


In a series of stories, ProPublica has charged Justices Clarence Thomas and Samuel Alito with two types of misconduct. First, the reports contend that the justices failed to disclose certain travel they received. Second, ProPublica alleges that the justices failed to recuse themselves from cases that indirectly involved the people who provided that travel. There are very straightforward responses to each of these accusations. Until fairly recently, the ethics rules were reasonably understood to not require disclosing such "personal hospitality." Moreover, the Justices were unaware of alleged potential conflicts because the Supreme Court briefs did not indicate any connection between the parties in the cases and those who provided the travel. ProPublica is no doubt aware of these two facts. Yet, the outlet still persists in a globetrotting quest to tar the judicial branch with the brush of corruption.

Now, Justice Alito has taken matters into his own hands. On Friday, ProPublica asked Alito to provide comments about a planned story concerning Alito's 2008 fishing trip to Alaska. On Tuesday evening, he provided such a response–in the Wall Street Journal. Why did Justice Alito take this unorthodox step to preempt the scoop? Because ProPublica has proven itself unreliable. The outlet could not be trusted to accurately provide Alito's rejoinder in context. And Alito's concerns proved prudent. 

Consider two examples. ProPublica wrote that "Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts." But ProPublica does not even acknowledge the 2023 rule revision. Indeed, the fact that the rule was changed reflects the prior uncertainty. ProPublica could fully inform readers about the relevant rule change. But it chose not to.

Second, ProPublica charged that Alito should have recused from Republic of Argentina v. NML Capital (2014). ProPublica reported that NML Capital was affiliated with billionaire Paul Singer, on whose private jet Alito flew to Alaska. ProPublica included a single explanatory sentence from Alito's Wall Street Journal op-ed to explain his failure to recuse: "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." But that generic line barely scratches the surface of what Alito wrote. Alito explained that "Singer was not listed as a party" in the briefs, and his name did not "appear in any of the corporate disclosure statements." Alito observed that it "would be utterly impossible . . . 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." 

Alito is correct on both fronts. On a plain reading of the old ethical rule, he complied with the standards as they were understood at the time. To prove the point, Judge A. Raymond Randolph of the D.C. Circuit Court of Appeals received permission from the ethics office to take a similar trip to Alaska in 2005. Moreover, there is no expectation that Justices unravel intricate business arrangements or comb through press stories to stumble upon phantom conflicts of interest.

ProPublica styles itself as "an independent, nonprofit newsroom that produces investigative journalism with moral force." But consistently, their reporting targets only conservatives, with the same cookie-cutter series of allegations that crumble under the slightest scrutiny. Regrettably, this pervasively-progressive "moral force" undermines any pretenses of "investigative journalism." Justice Alito shouldn't have to do the media's job. Fortunately for the Supreme Court, he did so.

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston.