On Thursday, ProPublica published a blockbuster report describing how Supreme Court Justice Clarence Thomas received years of lavish vacations—including travel by private jet and megayacht—paid for by a wealthy Republican megadonor. The details of the piece are astonishing, from the unreported flights valued at tens of thousands of dollars to the vacations valued at more than half a million. Equally astonishing is that a sitting justice believed that these trips need not be disclosed under decades-old ethics laws requiring justices to report all gifts worth more than a “minimal” value set by statute. Indeed, ProPublica’s revelations raise questions about the timing of news that broke last week about long-overdue reforms issued by the Judicial Conference, the federal courts’ rule-making body, which finally closed some of the most glaring loopholes in its rules governing when judges must disclose their receipt of free trips, meals, and other gifts under that federal law.
The updated rules—which apply, in theory, to Supreme Court justices as well as lower court judges—narrow the judicial branch’s reading of the so-called “personal hospitality” exemption to the federal financial disclosure law. As a result, the judiciary’s travel and gift disclosure standards are now closer to matching those of congressmembers and senior executive branch officials. The Judicial Conference can refer “willful” violations of these reporting requirements, which are subject to civil and criminal penalties, to the attorney general for prosecution.
This small but meaningful rule change—coming after years of congressional oversight, which I helped lead as a staffer on the Senate Judiciary Committee for Sen. Sheldon Whitehouse—is commendable. But no one should pretend it will do nearly enough to slow down the Federalist Society network’s billion-dollar juggernaut of influence and ingratiation that surrounds, and indeed produced, today’s unrestrained Supreme Court.
Amid mounting evidence of Supreme Court justices’ entanglements with special interests and plummeting public trust in the court, this update to the judicial branch’s ethics rules was the first indication that the courts—in seeming anticipation of Thursday’s news—might be trying to stop the free fall. But the outlandish judicial conduct that helped spur the reform—in addition to these latest revelations about Thomas—only make clear that more scrutiny is needed into questions of influence and corruption surrounding our least transparent branch.
Much of it involved Justice Antonin Scalia, the previous undisputed heavyweight champion of the “personal hospitality” exemption. Scalia took advantage of the judiciary’s lax rules to enjoy at least 85 undisclosed hunting and fishing trips during his tenure on the court, often with prominent Republican donors, politicians, and those with business before the court.
How do we know? After Scalia died—at an $800-per-night Texas hunting lodge among still-unknown companions—an enterprising pair of lawyers noticed that his acquaintances had taken to local news outlets to share stories of their hunting escapades with the late justice. Digging deeper, they unearthed evidence of a justice who regularly sat in the lap of luxury, on the dime of wealthy and influential hosts. The evidence also shows how Scalia devised a scheme—tacking private hunting trips onto public speeches—that generally allowed him to avoid detection.
Retired federal Judge Charles Pickering, Scalia’s frequent hunting facilitator, explained: “After it got out that if you took him hunting or fishing that he would come speak, he started getting invitations all over the place.” For example: hearing that Scalia would “do anything if you take him hunting,” Texas lawyer and Republican mega-donor Mark Lanier chartered a plane to take Scalia boar hunting on a private ranch following a speech he gave at Lanier’s alma mater, Texas Tech. As was typical, Scalia’s financial disclosure revealed only that he had received “transportation, food, [and] lodging” for “Lectures,” with Texas Tech as the sole reimbursing party.
The most concerning stories, of course, involve Scalia’s private fraternization with and receipt of free travel from those with cases or ongoing interests before the court.
There was Scalia’s refusal to recuse from a 2004 case involving Vice President Dick Cheney, despite their longstanding friendship forged through annual trips to a private duck-hunting lodge, accessed by private plane and hosted by an oil industry executive and prolific Republican donor. On another occasion, Scalia successfully solicited a pheasant-hunting trip from University of Kansas Law School dean and state solicitor Stephen McAllister, in exchange for his giving a speech at the school. In the weeks before and after the trip—during which Scalia traveled to a hunting camp on a state-owned plane with Kansas’ governor and other Republican politicians—McAllister twice appeared in the Supreme Court on behalf of the state. Scalia sided with Kansas in both cases.
While on these excursions with political allies, Scalia apparently felt little compunction about discussing the court’s notoriously private deliberations. Alan Gottlieb, a prominent gun rights advocate whose group is a repeat player before the court, recounted how Scalia all but told him the outcome of the watershed 2008 Second Amendment case District of Columbia v. Heller while at a 2007 NRA-funded trip to Nuremberg, Germany. Discussing whether the court would agree to hear the case—in which Gottlieb’s group was involved—Scalia reportedly said: “You know, Alan, it takes four votes on the Supreme Court to hear a case, and it takes five to win it. If I don’t think we have the five to win it, there won’t be four to hear it.” Gottlieb continued: “And that just made me feel like I knew at that point in time that if the Supreme Court took the Heller case, that we were going to win it.”
Scalia’s and Thomas’ misadventures reflect an attitude of impunity, arrogance, and unabashed partisanship that has only grown as the Federalist Society—which Scalia helped form—has cemented its grip on judicial power. As investigative reporting continues to uncover the sprawling web of influence driving the court’s composition and agenda, Federalist Society judges like Thomas have become not only more aggressive in their unprincipled judicial activism, but also more defiant in their resistance to ethics reform. Look, for example, at their recent campaign to beat back a proposed rule prohibiting judges’ membership in partisan organizations, their refusals to recuse themselves in the face of clear conflicts of interest, and their yet more free international trips and leaks to allied interests. So, although it is laudable that the courts have acknowledged and remedied the Scalia-sized loopholes in their gift disclosure rules, Americans should demand a much more serious reckoning before they contemplate restoring faith in our third branch.
