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It’s not always simple to contrast what happens on the Supreme Court’s docket with the justices’ own lives, but an unusually clear double standard is emerging this month. The revelation that billionaires are secretly reeling in conservative justices with lavish gifts has prompted a debate over ethics and recusal rules. Justice Samuel Alito entered the fray last week, preemptively declaring himself to be totally innocent of allegations leveled in a then-yet-unpublished ProPublica report. Simultaneously, the court’s end-of-term opinions reveal that certain justices believe they should get every benefit of the doubt while the most powerless parties before them get none.
In his Wall Street Journal op-ed, Alito defended his refusal to disclose a 2008 trip on the private jet of Paul Singer, a GOP megadonor, as well as his refusal to recuse from a case involving Singer’s hedge fund. These actions, the justice asserted, were perfectly legal under the Ethics in Government Act. That law compels justices to disclose gifts of value, with the exception of “personal hospitality.” It defines this term as “hospitality extended for a non-business purpose … on property or facilities owned by [a] person.” Another provision further limits the scope of “hospitality” to “food, lodging, or entertainment.” 28 U.S.C. 455, meanwhile, lays out the grounds for a Supreme Court justice’s recusal, requiring it “in any proceeding in which his impartiality might reasonably be questioned.” It also sets forth specific scenarios that compel recusal, including “a personal bias or prejudice concerning a party.”
Alito read both the recusal and disclosure rules in a light most generous to himself. He didn’t need to recuse in Singer’s appeal because he didn’t know Singer all that well, and didn’t realize he was a party to a case that came before the court multiple times. Plus, he complained, it’s really hard to do all the vetting and paperwork involved. How dare we demand so much of a mere Supreme Court justice? Alito also wrote that he didn’t need to disclose the travel because Singer’s private jet counted as a “facility” that fell into the exception for “personal hospitality.” Plus, the seat he occupied on Singer’s private plane “would have otherwise been vacant.” It seems that under the common law of private jet travel to Alaska fishing resorts, a corpus of law known only to an elite few, taking a vacant seat isn’t a gift; if anything, as Alito described the situation, it’s a favor to the “U.S. Marshals who would have been required for security reasons to assist” a justice who opted to travel commercial.
As ethics experts have noted all week, these justifications fall apart at the slightest scrutiny. To defend his claim that a private jet is a “facility,” the justice mangled the Random House definition of the word. As our colleague Rick Hasen soon pointed out, Alito cited a definition that applies only when the word is preceded by “transportation”—but even then, it would apply to an airport, not an airplane. He also dug up an archaic definition of “facility” from an old law dictionary, eliding key context that limited this idiosyncratic usage to railroads at the turn of the 20th century. As for the provision of the law limiting the term “hospitality” to “food, lodging, or entertainment”? The justice ignored it.
Say this for Alito, though: At least he tried. Justice Clarence Thomas, who also concealed trips on a billionaire’s private jet, never bothered to explain why he thought an airplane was a “facility.” Then again, Thomas never bothered to explain why he didn’t sit out a Jan. 6 case in which his own wife had a material interest. Perhaps Thomas believes he can exempt himself from recusal and disclosure requirements the way former President Donald Trump claims to be able to declassify documents: just by thinking about it, alone, in the night.
We would be more forgiving of this slapdash, self-serving pseudo-textualism if these justices applied it to anyone but themselves. But a brutal decision that came down last Thursday reminded us that they do not. In Jones v. Hendrix, Thomas, joined by Alito and the other conservatives, ruled that many people who are legally innocent must languish behind bars, in some cases indefinitely, because of a court’s mistake. The ruling shut down a crucial remedy known as habeas relief for defendants who were convicted for conduct that a court later found not to be illegal. The petitioners are innocent; it is their sentences that are illegal. And yet Thomas and Alito declared that they must serve out these illegal sentences anyway.
Hendrix is a complicated case, but here’s a primer: Congress gave defendants the right to request habeas relief when the usual post-conviction process is “inadequate or ineffective to test the legality of [their] detention.” Defendants who are legally innocent—because they were convicted for conduct that was later determined to not actually be criminal—should fall into this category. That’s because a different provision arbitrarily limits their ability to file for relief after a court determines that their conduct wasn’t illegal. (This limitation appears to have been caused by a congressional oversight.) According to pretty basic English usage, this isn’t hard: When an innocent person can’t contest the “legality” of their illegal sentence, they face a process that is “inadequate or ineffective.” So habeas relief steps in as a fallback.
To get around this commonsense conclusion, Thomas redefined the words “inadequate or ineffective” to mean something weirdly specific and unintuitive. The post-conviction process is only “inadequate and ineffective,” he wrote, if the court that sentenced the defendant has literally ceased to exist or become impossible to access. So, if the courthouse was located in the Panama Canal Zone or destroyed by an earthquake, relief might be “inadequate or ineffective,” since those courts are no longer standing. Anything short of dissolution or obliteration, however, won’t cut it. Which means that legally innocent people now have no means of challenging their unjust sentences, unless their court has been annihilated by an act of God or something like it.
Compare Thomas’ argument in Hendrix with Alito’s argument in, well, a Wall Street Journal op-ed. When a life-appointed justice faces the unspeakable horror of public criticism, ethics law must be interpreted as broadly as possible to cover his conduct: Suddenly, a private jet becomes a “facility,” and flying someone to Alaska becomes mere “hospitality.” Meanwhile, relief from a court is “inadequate and ineffective” only if that court was toppled in a mudslide, carried away by a tornado, or abolished by an act of Congress. Could there perhaps be something of a contradiction in the way these justices interpret the law when they themselves are in the hot seat?
Returning for a moment to the reasons we ask that judges, of all government employees, be bound by rules that suggest that their judgement is unimpeachable and without stain. The Code of Conduct that governs all federal judges provides that “an independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.” The rules exist not simply to protect the idea of an independent and honorable judiciary, but to signal to all comers that equal justice under the law is a cornerstone of any judicial project.
Nobody doubts that a clever jurist with a dictionary and a truckload of motivated reasoning can use the law to exculpate himself and inculpate others. The rules that demand the primacy of appearances and high standards are intended to signal that judges understand this too. The goal here is not an abstraction. It is to ensure that judges face the same music everyone else does. Thomas and Alito apparently believe there is one standard for themselves and another for the piddly rest of us.
