Supreme Court controversy over Alito, Thomas free trips began with Justice Scalia

WASHINGTON —  The late Justice Antonin Scalia left a long legacy on the Supreme Court, from his devotion to originalism to his sharp-tongued rhetoric.

But the enthusiastic hunter and fisherman also set a precedent of sorts on how to take free trips without disclosing them — one that is now causing headaches for some justices.

In 2004, Scalia flew with then-Vice President Dick Cheney for a duck hunting trip at a private camp in Louisiana. A few weeks before, the Supreme Court had voted to hear the vice president’s appeal of a ruling that required the disclosure of energy industry lobbyists who had met with his energy policy task force.

When news of the trip was revealed, Scalia said his stay at the hunting camp involved personal hospitality unrelated to his court work.

And he said he need not step aside from ruling in Cheney’s case.

“I do not think my impartiality could reasonably be questioned,” he said at the time. He later joined a 7-2 ruling that shielded Cheney from disclosing the participants in his energy task force.

On Tuesday, ProPublica revealed that Justice Samuel A. Alito Jr. in 2008 took a free and undisclosed private flight to Alaska with hedge fund billionaire Paul Singer and stayed at a “luxury fishing lodge that charged more than $1,000 a day.”

Photos from the trip show Alito and Singer each proudly posing with a thick king salmon.

“Three years before,” the story noted, “the same businessman flew Justice Antonin Scalia, who died in 2016, on a private jet to Alaska and paid the bill for his stay.”

When the ProPublica reporters sent questions to Alito, he responded by sending the Wall Street Journal an opinion piece that appeared late Tuesday rebutting the allegations that he had taken a free trip paid for by a billionaire with cases before the court.

He described the King Salmon Lodge as a “comfortable but rustic facility,” and said he was not aware of Singer’s involvement in cases before the court.

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Federal law requires the justices, like other federal employees, to disclose significant gifts they have received. But Alito, like Justice Clarence Thomas and Scalia, said that because “personal hospitality” was exempted, the disclosure rule did not extend to private plane trips or stays at private resorts.

“When I joined the court [in 2006] and until the recent amendment of the filing instructions, justices commonly interpreted this discussion of ‘hospitality’ to mean that accommodations and transportation for social events were not reportable gifts,” Alito wrote.

“The flight to Alaska was the only occasion when I have accepted transportation for a purely social event, and in doing so I followed what I understood to be standard practice,” he wrote.

This loose interpretation of the gift disclosure rule did not extend to other judges or federal employees.

When ProPublica reported on Thomas’ many free and undisclosed vacation trips with billionaire Harlan Crow, judges and others said they would have turned down such free travel or been obliged to disclose it.

Alito also followed Scalia’s lead in refusing step aside from cases that involved Singer’s hedge fund.

ProPublica cited a 2014 ruling when the court in a 7-1 decision written by Scalia and joined by Alito said his hedge fund may pursue Argentina’s assets held in the United States to settle a bankruptcy claim. It reported the hedge fund ultimately was paid $2.4 billion.

Alito said he was not aware of Singer’s role in the case, adding he barely knew Singer.

He wrote in the Wall Street journal piece that it was incorrect to say “my failure to recuse in these cases created an appearance of impropriety .... My recollection is that I have spoken to Mr. Singer on no more than a handful of occasions, all of which (with the exception of small talk during a fishing trip 15 years ago) consisted of brief and casual comments at events attended by large groups. On no occasion have we discussed the activities of his businesses.”