Another week, another Supreme Court corruption scandal. This time it’s Samuel Alito in the spotlight, after ProPublica, fresh off its April exposé of justice Clarence Thomas’s decades of undisclosed gifts from billionaire Harlan Crow, revealed last week that Alito had taken his own undisclosed gifts from a billionaire: Paul Singer, hedge fund manager and GOP megadonor, who had business before the court from which Alito failed to recuse himself.
The Thomas story was bad enough for a court whose public standing has taken a beating over a series of outrageous rulings, followed by further stories that exposed just how deeply conflicted and compromised Thomas is. But the Alito story — already arguably worse, since Alito can’t even use Thomas’s excuse that his billionaire benefactor was never directly involved in a case that he ruled on — may become an even bigger debacle. That’s thanks in large part to a set of unforced errors accumulated over the course of the bizarre way the justice chose to respond to the story.
ProPublica’s report was preempted by a Wall Street Journal op-ed from Alito himself defending his conduct and “pre-bunking” the outlet’s piece, charging them with “misleading” reporting — even though he hadn’t read the unpublished report. As ProPublica later explained in a separate piece about this profoundly weird development, it seems that Alito, in concert with the Supreme Court’s press office, had used the outlet’s generous policy of holding off publication of the story until Alito sent back responses to lie to the reporters that he wouldn’t comment, find out when they were planning to publish the story, then blindside them by having the Wall Street Journal quickly spring his defense on the public.
The Journal’s decision to publish Alito’s “prebuttal” to a competitor’s story has been savaged by experts in journalistic ethics, media critics, and even some former employees. This ethical lapse wasn’t helped by the fact that the Journal editor unnecessarily appended a snarky note explaining that ProPublica “styles itself ‘an independent, nonprofit newsroom that produces investigative journalism with moral force,’” before the editorial board published its own op-ed explicitly defending Alito, calling the piece “typically slanted” and “a non-scandal built on partisan spin intended to harm the justice and the current Court majority.”
In a furious screed worthy of Brett Kavanaugh, the board went on to profess that it was “hilarious to be denounced for betraying the media brotherhood” by “the same crowd that would prefer if we didn’t exist,” and that the reporting in ProPublica — founded by a former Journal reporter who had served as the paper’s managing editor for more than twenty years — was really “about the left’s fury at having lost control of the Court.” Columbia University journalism professor and former Journal senior editor Bill Grueskin told the Times that Alito’s choice to go to the paper instead of issuing a statement, “and that the editorial page was willing to serve as his loyal factotum,” said “a great deal about the relationship between the two parties.”
And that’s before you even get to the substance of Alito’s defense, in which he claimed that Singer’s gifts amounted to “personal hospitality” and so were exempt from disclosure, that he had no idea Singer headed the hedge fund involved in the cases he was ruling on, and that the private jet seat he had accepted would have been empty otherwise, making it his right — no, his duty, given the taxpayer costs involved in flying commercial — to take the gift.
But as ProPublica pointed out in its rebuttal, private jet flights don’t count as hospitality, and Singer’s involvement in the hedge fund was widely reported at the time. I would also add that ethics rules don’t have an exemption for taking bribes if it would save the taxpayer money.
So for those counting, that’s three different institutions whose public standing has been damaged by this fiasco: the justice himself, the court bureaucracy that misled reporters on his behalf to assist this caper, and one of the country’s major newspapers, which crossed some major ethical lines to let him pull it off and published his op-ed without even being able to fact-check it. That’s a rare hat trick.
Ironically, it was the Journal itself that published an investigation two years ago that revealed 152 federal judges had improperly and illegally ruled on more than a thousand cases that involved firms in which they held stock, quite rightly treated by the paper as a major scandal at the time. In those cases, the judges actually disclosed those conflicts — both Thomas and Alito failed to do the same for the gifts they got from billionaires, carrying the uncomfortable suggestion that the most powerful court in the country is not only financially compromised, but considers itself above even the bare minimum of ethical conduct that lower-court judges hold themselves to.
It’s hard to think of many other countries where not only is the plain financial corruption and partisan affiliation of the judiciary so tolerated and even defended, but where the high court also happens to be as extremely powerful as it is in the United States, where a handful of elites can simply rewrite and nullify long-standing law seemingly on a personal whim.
The Journal editorial board is wrong to cast ProPublica’s reporting as an exercise in left-wing activism. But it’s right that these revelations are damaging to the Supreme Court as it exists — because they should spur action to reshape it into a body of genuine “judicial independence” and democratic will, not a conduit for billionaire interests.