“Questioned about an undisclosed fishing trip hosted by a GOP billionaire, the Supreme Court justice instead shared his rebuttal in a rival media outlet — before the investigative journalists could publish their scoop
Supreme Court Justice Samuel A. Alito Jr. took issue with questions raised by the investigative journalism outlet ProPublica about his travel with a politically active billionaire, and on Tuesday evening, he outlined his defense in an op-ed published by the Wall Street Journal.
Yet Alito was responding to a news story that ProPublica hadn’t yet published.
Alito’s Journal column, bluntly headlined “ProPublica Misleads Its Readers,” was an unusual public venture by a Supreme Court justice into the highly opinionated realm of a newspaper editorial page. And it drew criticism late Tuesday for effectively leaking elements of ProPublica’s still-in-progress journalism — with the assistance of the Journal’s editorial page editors.
An editor’s note at the top of Alito’s column said ProPublica reporters Justin Elliott and Josh Kaplan had sent questions to Alito last week and asked for a response by Tuesday at noon. The editor’s note doesn’t mention that ProPublica hadn’t yet published its story — nor that Alito did not provide his answers directly to ProPublica.
A spokesperson for the Journal, whose editorial page operates independently from its newsroom, did not respond to The Washington Post’s request for comment late Tuesday.
ProPublica published its story on Alito just before midnight on Tuesday, about five hours after the Journal published Alito’s column.
The article details the conservative justice’s relationship with billionaire hedge fund manager Paul Singer, including their trip to an Alaskan fishing resort in 2008. According to the story, Singer — whose hedge fund subsequently came before the court 10 times in cases involving business disputes — flew Alito to the resort on his private jet, a trip ProPublica reported would have cost Alito more than $100,000 one way if he had chartered the jet on his own.
Alito, who wrote the landmark Dobbs decision that struck down federal abortionrights last year, didn’t list the trip on his financial disclosure forms, an omission that some ethics experts say could violate federal law.
The article noted the role of conservative judicial activist Leonard Leo in organizing the Alaska trip, including recruiting Singer to fly Alito to the lodge. The longtime head of the Federalist Society, Leo helped Alito win confirmation to the Supreme Court. Singer and the lodge’s owner were major donors to the Federalist Society.
The story carried the bylines of Kaplan, Elliott and a third ProPublica reporter, Alex Mierjeski — the same team that reported a blockbuster story in April detailing years of luxury trips taken by Justice Clarence Thomas and his wife, Ginni, and paid for by billionaire Harlan Crow, who also paid for Thomas’s grandnephew’s private school tuition.
Those disclosures and others — The Post reported last month that Leo arranged for Ginni Thomas to be paid tens of thousands of dollars for consulting work just over a decade ago, specifying that her name be left off billing paperwork — have led some Democrats in Congress to call for Clarence Thomas to resign and others to call for stricter ethics standards specific to the Supreme Court.
Chief Justice John G. Roberts Jr. has resisted congressional efforts on that front, but he recently acknowledged the controversy.
“I want to assure people that I’m committed to making certain that we as a court adhere to the highest standards of conduct. We are continuing to look at things we can do to give practical effect to that commitment,” Roberts said when accepting an award last month from the American Law Institute.
But the justices for years have been considering an ethics plan, without being able to come to agreement.
In his Journal column, Alito accurately anticipated the thrust of ProPublica’s not-yet-published article. He denied he had a conflict in accepting Singer’s “hospitality” or was obligated to disclose the 2008 trip. “Neither charge is valid,” the justice wrote preemptively.
He asserted that Singer was merely an acquaintance, with whom he spoke only fleetingly during the fishing trip, and said he was not aware of Singer’s connection to any subsequent court matter.
Alito said he accepted the offer of a seat on Singer’s private plane because it would otherwise have been unoccupied. A commercial flight, he wrote, would have imposed costs on taxpayers, who would have had to pay for the deputy U.S. marshals who provide security to Supreme Court justices to fly with him.
He also disputed ProPublica’s apparent characterization of the fishing resort, calling it “misleading.”
“I stayed three nights in a modest one-room unit at the King Salmon Lodge, a comfortable but rustic facility” with “home style meals,” he wrote, adding, “I cannot recall if (we were) served wine, but if there was, it was certainly not wine that costs $1,000.”
Alito said he didn’t disclose the flight in his annual disclosure form because the rules at the time were vague: “I followed what I understood to be standard practice.”
His defense was similar to that offered by Thomas when ProPublica first reported on his luxury trip.
“Early in my tenure at the Court,” Thomas said in a statement, “I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”
Federal law mandates that top officials from the three branches of government, including the Supreme Court, file annual forms detailing their finances, outside income and spouses’ sources of income, with each branch determining its own reporting standards.
Judges are prohibited from accepting gifts from anyone with business before the court. Until recently, however, the judicial branch had not clearly defined an exemption for gifts considered “personal hospitality.”
Earlier in the spring, a committee of the Judicial Conference, the courts’ policymaking body, revised those rules to be more specific, stating explicitly that judges must report travel by private jet. Gifts such as an overnight stay at a personal vacation home owned by a friend remain exempt from reporting requirements. But the revised rules require disclosure when judges are treated to stays at commercial properties, such as hotels, ski resorts or other private retreats owned by a company, rather than an individual.
The revised rules apply to the justices’ 2022 disclosure forms, which were made public this month. Thomas and Alito requested filing extensions, so their forms are not yet available.
The Journal’s editorial page has veered sharply to the right in recent years and often expresses support of the more-conservative members of the Supreme Court. In April, it blasted “left-leaning” ProPublica’s reporting on Thomas, arguing that the justice did not violate any disclosure rules at the time and that he faced no conflict of interest in his dealings with Crow.
And in April, after the justices reported on their unsuccessful effort to identify the leaker of a draft of the 2022 Dobbs decision that overturned Roe v. Wade, which affirmed the constitutional right to abortion, Alito gave a rare interview to a Journal editorial page editor and a private lawyer active in conservative causes.
The justice, who wrote the Dobbs opinion, told the pair that he had a “pretty good idea” who leaked the document but that neither he nor the court can prove it. In the interview, Alito said the theory that the draft was leaked by someone on the right, in hopes of locking in the five votes necessary to overturn Roe, “is infuriating to me.”
“Look, this made us targets of assassination,” Alito told his interviewers. “Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”
Elliott, the lead ProPublica reporter on the Alito story, told The Post early Wednesday that he and his colleagues had been informed Tuesday by the Supreme Court’s chief spokeswoman that Alito would not comment for their story.
“It was surprising to see the op-ed publish several hours after that,” he said, “but we’re happy to get substantive engagement with our questions in any forum.”