The Court’s Conservatives Aren’t Taking It Lying Down Anymore

By Noah Rothman

Thursday, June 22, 2023

 

It began, as these things so often do, with a left-wing freakout.

 

“Journalistic malfeasance,” the investigative journalist Victoria Brownworth declared. “Sickening.” “When you’re trying this hard to justify why you weren’t unethical, maybe just don’t,” Noah Bookbinder, the president of Citizens for Responsibility and Ethics in Washington, advised. HuffPost senior politics reporter Igor Bobic accused the Wall Street Journal editorial board of “openly running PR for a SCOTUS justice.” The increasingly paranoid Senator Sheldon Whitehouse indulged his fondness for conspiracy theorizing. “First, who orchestrated this weird pre-buttal with the infamous WSJ Polluter Page,” he wrote, speculating about the moneyed puppet masters who haunt his fevered imagination.

 

The offense that worked these and many other center-left political observers up into a lather was a decision by Justice Samuel Alito to write, and the Journal to publish, a preemptive defense of his conduct, which the investigative outlet ProPublica was about to disclose. “Neither charge is valid,” Alito wrote of the claims yet to be published. In a bizarre inversion of cause and effect, this preemptive act of self-defense led Politico to declare that “Alito picks a fight with ProPublica.”

 

It’s worth beginning with the reaction and counterreaction to ProPublica’s latest report, because generating reactions, not the dispassionate dissemination of information, is what ProPublica was after. But in some deference to the Left’s frustration with Alito for refusing to simply lie back and take it, let’s explore the details of the outlet’s latest broadside against the conservatives on the Court.

 

In a piece published late Tuesday night, ProPublica revealed that Justice Alito flew to Alaska in 2008 on a private jet owned by the billionaire hedge-fund manager Paul Singer. There, he was joined by the Federalist Society’s Leonard Leo. The trip was not unlike an excursion organized by Singer for the late Justice Antonin Scalia in 2005. But Alito never disclosed either the private flight or his accommodations, which the “experts” ProPublica surveyed say was either legally required or a matter of prudence.

 

The appearance of corruption doesn’t end there. The piece establishes both that Paul Singer has a lot of money and that he at one point had business before the Court, from which neither Alito nor Scalia recused themselves. What business? Both before Alito’s trip and after — indeed, on eight occasions over the better part of a decade — petitioners sought to have the Court hear a case involving the purchase by a firm in which Singer was involved of Argentinian debt during an economic downturn in 2001. Eventually, that firm endeavored to capitalize on its investments and make itself whole by seeking to seize Argentinian assets in the U.S. But the banks in control of those assets refused to disclose them.

 

After 13 years of litigation, the case was taken up by the Supreme Court. In 2014, the Court found that the Foreign Sovereign Immunities Act of 1976 did not provide banks with immunity from a discovery order aimed at commercial entities. Scalia was the author of that majority opinion, and he was joined by Alito. But Scalia was also joined by five other justices, including liberals Elena Kagan, Anthony Kennedy, and Stephen Breyer. The late Ruth Bader Ginsburg was the lone dissenter, while Justice Sonia Sotomayor recused herself from the case.

 

ProPublica seemed to conclude that the 2008 Alaska trip and the 2014 decision were sufficient to establish the appearance of corruption. The outlet then pivoted toward advocacy of the legislative measures preferred by so many of the “experts” it quotes throughout the piece who express concern about the Supreme Court’s independence. “Recent bills would impose tighter rules for justices’ recusals, require the Supreme Court to adopt a binding code of conduct and create an ethics body, which would investigate complaints,” ProPublica wrote. “Neither a code nor an ethics office currently exists.”

 

Some have argued that the congressional remedies envisioned in those bills (which ProPublica doesn’t specifically name), including in Whitehouse’s SCERT Act, violate the separation of powers by making the conduct of the Supreme Court subject to the review of lower courts. Further, the outlet failed to prove that Alito violated existing disclosure rules. As ProPublica admits, disclosing a stay at a commercial property for which a justice didn’t foot the bill was not explicitly recommended until this year (contrary to the claims that the Court never tightens its disclosure requirements). Moreover, another guest on the infamous fishing trip, appellate judge A. Raymond Randolph, managed to produce for ProPublica contemporaneous notes he took while consulting with the judiciary’s financial-disclosure office: “Don’t have to report trip to Alaska with [conservative donor and trip organizer] Rob Arkley & others / private jet / lodge.” Since the fact pattern established in ProPublica’s report does not add up to a quid pro quo, the piece relies on mere insinuation.

 

Back to Alito’s prebuttal in the Journal: “First, even if I had been aware of Mr. Singer’s connection to the entities involved in those cases, recusal would not have been required or appropriate,” the justice wrote. “My recollection is that I have spoken to Mr. Singer on no more than a handful of occasions. . . . We have never talked about any case or issue before the Court.” Nor, Alito claims, would he have had reason to know that Singer had business before the Court, because the hedge-fund manager “was not listed as a party in any of the cases listed by ProPublica.” As for the flight, which is the strongest argument ProPublica musters in support of the charge that Alito neglected disclosure requirements, “I was asked whether I would like to fly there in a seat that, as far as I am aware, would have otherwise been vacant,” the justice concluded. “It was my understanding that this would not impose any extra cost on Mr. Singer.”

Leonard Leo himself responded to ProPublica’s charges:

 

Justices Ruth Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor also have regularly received a level of hospitality from friends and strangers that most Americans never experience, but, like their conservative colleagues, they don’t disregard the law because of outside influence. They’re smart and equally strong-willed and independent—just wrong about their proper role and what the Constitution means. We all should wonder whether this recent rash of Pro Publica 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 cultural preferences.

 

Indeed. Anyone can play the innuendo game. In fact, the Daily Caller did so rather convincingly. If we are supposed to assume that casual exposure to billionaires is inherently corrupting, what does it say about ProPublica that its funding comes from organizations like the Sandler Foundation? That institution, which was described by Forbes magazine as having “instituted borrowing practices that were largely blamed for the housing market collapse” in 2008, also financially supports the left-wing group Demand Justice, which advocates packing the Supreme Court. ProPublica is also supported by the Campaign Legal Center, which has sought “criminal and civil penalties” against Justice Clarence Thomas and employs executive director Kedric Payne, who has testified in support of Democratic initiatives in Congress.

 

This would be a shoddy indictment of ProPublica if it were the only prism through which we viewed its work. It is an exercise aimed at establishing guilt by association. But that is precisely the enterprise in which ProPublica is engaged. Moreover, it is painfully clear by now that the goal of these reports is to weaken Article III of the Constitution because some activists dislike the justices that presidents have nominated and the Senate has confirmed to the Court. After all, the template ProPublica rolled out to tarnish Alito — and, by extension, the Court’s conservative majority — is the same one it previously applied to Thomas.

 

In ProPublica’s unsuccessful effort to shame Thomas into recusing himself from key cases, or, perhaps, abdicating his role entirely, the venue trotted out the same methods it now applies to Alito: consulting cherry-picked “experts” whose only role is to legitimize a preconceived conclusion, and deploying sinister language designed to trigger class-conscious progressives’ paranoia. Where ProPublica failed with Thomas was in its inability to allege or even suggest that the justice’s association with the billionaire Harlan Crow represented a conflict of interest — because Crow never had any business before the Court. ProPublica sought to remedy that lapse here, but they came up only with a bunch of missing Alaskan salmon and a Court case so compelling it convinced most of the Court’s liberals to join the majority decision.

 

Because National Review isn’t in the business of accepting false premises, the editors called this style of journalism out for what it is: salvos in a “war against the legitimacy of the Supreme Court as a whole.” ProPublica’s latest is only another pincer in the counteroffensive, with a strategic goal that is as obvious as it is odious.

 

The shape of this campaign is clear: ProPublica, or a similar outlet, details a justice’s association with a right-wing donor and lards the case up with sordid implications. Those implications become the “many people are saying” hook used by mainstream media outlets to justify follow-ups replete with quotes from vested interests who blur the distinction between inference and fact. The activist class emerges to insist that the latest depravity from the Court’s conservatives imperils its “legitimacy,” and they alone can “save the court from itself.” And the beat goes on. But the Court’s would-be “reformers” have about as much interest in its legitimacy as Typhoid Mary had in the promotion of public health. If their faction cannot control the Court, they will attack its foundations. And their crusade is having its intended effect among partisan poll respondents.

 

The Right shouldn’t accept this. It is a campaign of intimidation masquerading as journalism. The Wall Street Journal editorial page deserves commendation for attempting to break the rhythm of this tawdry onslaught of defamation and agitation. Others should follow its lead. As for the activists who have confused their newsroom cubicle for a soapbox, they can go jump in a lake. I hear Alaska is nice this time of year.

 

Addendum: Florida governor Ron “DeSantis has really underperformed,” declared former Maryland governor Larry Hogan in an interview with CBS News reporter Major Garrett this week. The DeSantis campaign is “one of the worst I’ve seen so far, and he’s dropped like a rock.” Hogan added that it won’t be long now before one of Trump’s lesser-known challengers surpasses DeSantis in the polls.

 

“Is it over for DeSantis?” Garrett asked.

 

“I think it’s getting close to being over,” Hogan replied.

 

The segment is worth watching because in it the former governor reveals that he knows enough about campaign dynamics and recent political history to be fully aware that his verdict is absurdly premature. Indeed, Hogan’s own campaign for governor in 2014 had plenty of dark moments. He lost straw polls to his most potent Republican rival, David Craig, in the primaries, and he trailed his general-election opponent in head-to-head matchups well into October.

 

Hogan also noted that DeSantis has “raised a ton of money,” which alone is enough to render the conclusion that it’s “close to being over” for him fanciful. The Florida governor had at least $110 million in the bank in April, and he’s likely to post strong fundraising numbers at the end of this quarter. At the very least, those resources will be sufficient to allow DeSantis to test the proposition that his campaign is going nowhere well into 2024.

 

DeSantis supporters can’t be happy with the direction in which the campaign is headed, nor should they succumb to complacency. But the idea that it’s “almost over” for him is poppycock. Whatever motivated Hogan to make these remarks, it wasn’t his sound punditry.

 

In news that may be related to Hogan’s otherwise inexplicable attack on the DeSantis campaign, on Thursday morning former Texas congressman Will Hurd threw his hat into the 2024 presidential ring. If the donor class gets spooked by DeSantis’s showing in the polls, we can expect more entrants to follow.