Alito and the Code

Did the Supreme Court justice’s recent appearance at the Claremont Institute violate the ethical guidelines for United States judges?

U.S. Supreme Court Associate Justice Samuel Alito.

Supreme Court Justice Samuel Alito speaks during the Georgetown University Law Center’s Dean’s Lecture in Washington, D.C., on Feb. 23, 2016.

Chip Somodevilla/Getty Images

Supreme Court justices are popular figures on the banquet circuit, but they come with a serious drawback. Canon 4C of the Code of Conduct for United States judges provides that a judge may not be a speaker or the guest of honor at “fund-raising” events. Although the Supreme Court has never formally adopted the code, which applies only to judges on the lower federal courts, Chief Justice Roberts has reported that the justices will look to it as “a uniform source for guidance” on ethical matters. Consequently, the justices refrain from speaking at money-making events, even for their favorite nonprofits.

The rule against fundraising is an important principle in judicial ethics, dating back to at least 1924, when an American Bar Association Committee, chaired by then Chief Justice William Taft, promulgated the first Canons of Judicial Ethics. The canons provided that a judge should not use “the power or prestige of his office” to solicit charitable donations, lest he (the judges were all men in 1924) give the appearance of either coercing contributions or encouraging others to curry favor. Similar provisions have been included in successive iterations of what is now called the Code of Judicial Conduct, including the version embraced by the Judicial Conference of the United States. It is that rule that seems to have been disregarded when the Claremont Institute recently honored Justice Samuel Alito.

As a proudly conservative think tank, the Claremont Institute has a tradition of attracting star-quality speakers to headline its gala events. Past luminaries have included Rush Limbaugh (2004), Paul Ryan (2011), Ted Cruz (2014), and Laura Ingraham (2016), all of whom drew crowds in support of  the institute’s stated mission of “leading the conservative charge” to “defeat progressivism.”

Proximity to such celebrity does not typically come cheaply. Tickets for the 2010 dinner honoring Dick Cheney, for example, cost $250 for regular folks and $1,000 for VIPs (which included a pre-dinner reception and preferred seating). Table sponsorships for Cheney were available at three levels, starting at $5,000, all of which included 10 tickets and acknowledgement in the program. Sponsorships of at least $10,000 brought the added benefit of “premier seating.” While precise figures are not available, it is a safe bet that table sponsors have made a meaningful contribution to the institute’s annual revenues, which—according to its 2015 federal tax return—exceeded outlays by nearly $3 million that year.

Justice Alito, however, imposed a condition when he agreed to accept the institute’s 2017 “Statesmanship Award.” According to the Supreme Court’s public information office, Alito insisted that tickets would have to be sold for no more than the cost of the meal. Claremont promised to comply and included the following notice on its website promoting the dinner:

The Claremont Institute is proud to be honoring U.S. Supreme Court Justice Samuel Alito, and we believe it is especially important that you hear from him during this critical time in our nation’s history. However, ethics rules dictate that we cannot sell table sponsorships, as we have in previous years.

But that was not quite the end of it. The very next paragraph included this intriguing invitation:

If you would like a table at the Dinner, you can join the Claremont Institute’s annual Host Committee by clicking here. [Boldface in the original.]

Following the link, I discovered that membership on the “annual Host Committee” requires a donation of $10,000, which would be “used to support the Claremont Institute’s many events throughout the year in California, Washington, D.C., and the rest of the country.” Among other benefits, “Host Committee” donors were to receive 10 tickets, with “preferred seating at the 2017 annual dinner”—the event honoring Justice Alito.

Given that $1,000 seems like a hefty price for any meal, even at the swanky Island Hotel in Newport Beach, California, I asked the Supreme Court’s public information office if Justice Alito had been aware of the existence and details of the “Host Committee.” I was told that he had been “assured by Claremont that there was no fundraising associated with the event.” When I pressed the point—was a $10,000 donation consistent with the justice’s requirement?—I was informed there would be “no further comment.”

Fundraising is fundraising, even if it requires clicking on an additional link to reach the contribution page. The “Host Committee” benefits for the Alito dinner were mostly the same as the perks provided to VIPs and table sponsors for the Cheney event, save for the absence of the reception and the shoutout in the program (and the difference, if any, between preferred and premier seating). Claremont’s chief operating officer told me the Alito dinner was not a fundraiser, but he declined to comment on the solicitation or to tell me the ticket price for the Alito event.

There has been considerable pressure on the Supreme Court to adopt its own code of conduct. Legislation to that effect has been repeatedly introduced in Congress, which would, in the words of one sponsor, require the court to announce “clear, written rules that establish standards by which justices’ behavior can be guided and assessed by both themselves and the American people.”

But no code—whether used only for guidance or accepted as binding—can substitute for a justice’s own vigilance. It is impossible to know how many $10,000 donors joined the Claremont Institute’s “Host Committee” for the purpose of honoring Justice Alito, but even one would be too many. The prohibition on fundraising is long-standing principle of judicial ethics, and it is important that it be respected in both word and deed.