Justice Alito Joins the Political Wars as a Combatant

Justice Samuel Alito has joined our ongoing political wars between the Red Team and the Blue Team as a foot soldier.  Oh, sure, he was already involved.  He wrote Dobbs, didn’t he?  May have been the leaker, too.  But now he’s crossed a new line in terms of personal involvement.  Now he writes Op-Ed pieces, in addition to judicial opinions.  And what a breach of Supreme Court norms, historic practices and ethics (with a small “e”) it is. 

It started last week, when ProPublica was finalizing another Supreme Court ethics story, this time about lavish fishing trips that Justice Alito took with Paul Singer of Elliott Associates, a very large hedge fund.  Singer is also a noted supporter of Republican free market and low tax candidates and related political causes, including the Federalist Society, and has been for over 30 years.  He also is an activist investor and a regular litigant in corporate matters, including suing Argentina over its defaulted bonds for at last 20 years, entailing multiple trips to the Supreme Court, all of which is well known to pretty much anyone who follows these matters.  Yet Alito professed ignorance about it all.  “I’m shocked, shocked, to find out there’s gambling going on here.”  Not credible, Sam.

Just as surprising as the substance of his position was the forum and manner of where he chose to articulate it, and indeed that he articulated it at all.  ProPublica was finalizing their story, and gave him a chance to comment on it, as all credible reporters do on major stories.  Instead of responding directly, he went to the friendly forum of the Wall Street Journal’s Op-Ed page, penning his response there under the headline “ProPublica Misleads Its Readers.”  Whoever heard of a Supreme Court Justice behaving this way?  Are all nine Justices now going to become freestyle advocates for themselves and their personal and substantive positions?  Do they all now get budgets for PR and political consultants and advisers?  Can we expect daily press releases and performance anger in front to cameras like Marjory Taylor Greene or Lauren Boebert or Matt Gaetz on the Red Team side or Alexandria Ocasio Cortez for the Blue Team?

And what about the basic principle of judicial ethics that a judge can’t personally respond to attacks on him or her?  Which is why we at NYCLA often take up the cudgel to defend judges against unfair attacks.  Oh, right, that’s another one of those ethical rules that applies to every other judge but the Supreme Court thinks doesn’t apply to them.  Which is why we at NYCLA issued a report back in April calling on the Supreme Court to subject itself to the same Code of Ethics that applies to every other federal judge in the land, failing which Congress should do it for them.

And what is the substance of Justice Alito’s defense?  Pretty much the same as Justice Thomas articulated in response to ProPublica’s articles about him.  These are personal entertainment items, not gifts, and the rules only required the disclosure of gifts at the time.  Justice Alito, ever the textualist, even cites Webster’s Dictionary definitions related to gifts.  Say what?  My wife and I sometimes give “gifts” of experiences for family and friends, for things like anniversaries and birthdays, consisting of things like dinners, theatre and sports tickets and weekend and vacation plans (everybody, don’t start calling!).  Justices Alito and Thomas are using text and language to split hairs.

And, in the process, they are both losing sight of the larger picture, which is that such lavish gifts/entertainment, from fellow political travelers, inevitably casts doubt on their independence and objectivity.  And here is where Justice Alito’s Op-Ed really goes off the tracks.  He acknowledges that the appropriate standard to evaluate his actions is whether an “unbiased and reasonable person who is aware of all relevant facts would doubt the Justice could fairly discharge his or her duties,” and he actually  says that “No [reasonable] person would think that my relationship with Mr. Singer meets that standard.”  I guess I’m either biased or unreasonable, or both, as I certainly doubt it.  To me what he apparently concedes he did here has all of the appearances of impropriety making it all but impossible to discharge his duties in a fair and neutral manner. 

In fairness to Justice Alito the fishing trip was quite a number of years ago, and standards and expectations around the behavior of the Justices are changing as we speak.  He and his buddy Clarence are not the only Justices who accepted entertainment without reporting it, and no doubt ProPublica is focusing on them because they are the most right wing justices on the Court while ProPublica is plainly on the Blue Team.  But it’s not a good thing for the Court to be so ideologically tinged.

One hundred years ago the Legal Realists like Jerome Frank, of Yale Law School and the Second Circuit, or Thurman Arnold, of Yale Law School as well as the founder of my former firm, taught us that all judging inevitably involves considerations of policy at times.  Maybe what we have here is the nihilist version of that, where judges and justices just play raw politics all the time.  Certainly the intellectual problem the Realists left in their wake is one of how to determine a legitimate philosophical basis on which judicial decisions may be based other than the personal political predilections of each judge or justice.  The principal current approach of the Red Team is a combination of originalism and textualism, which I find inadequate.  But we certainly don’t want our judges and justices engaging in the raw political fray, which further undermines their standing and credibility.  When the Supreme Court decided Brown v. Board of Education in 1954, Chief Justice Earl Warren didn’t write articles and give speeches to justify the Court’s ruling.  But he was very roundly criticized by many.  Brown was of course a policy and moral values decision, coupled with the text of the Equal Protection Clause and the history underlying it, that segregation could no longer stand.  It is the one decision the entire country seems to agree, with 70 years of history behind it, was unquestionably correct and not subject to challenge.  What Justice Warren did, by staying above the fray, was to allow the moral strength of the decision to stand in contrast to many of the facts on the ground.  The Court can only cost itself credibility and strength by allowing itself to be further politicized in the manner that Justice Alito has done.

If there is any doubt that what is afoot here is power politics in its rawest form, listen to Leonard Leo:  “We should all wonder whether this recent rash of ProPublica stories questioning the integrity of only conservative Supreme Court justices is bait for reeling in more dark money from woke billionaires who want to damage this Supreme Court and remake it into one that will disregard the law by rubber stamping their disordered and highly unpopular political preferences.”  Wonder indeed.  Pot, meet kettle.  But that is precisely when the Justices should be striving to stay above the fray, not plunging right into it.  For shame.

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, members, officers or Board.