Juvenal said that it is very difficult not to write satire. As its 2022 term came to a close, the United States Supreme Court proved his point.

Take Justice Samuel Alito. Arrogant has its etymological roots in the Latin rogare: to ask. It shares that root withinterrogate (to question), prerogative (which, literally, means “ask first”) and rogation (hence the special period of petitionary prayer known as Rogation Days.) Arrogant, then, literally means “without questioning,” a la asymptomatic,asymmetrical, or asocial.  Justice Alito demonstrated, once again, his arrogance, not once, but twice last month. He likes to answer questions before they’re asked, and to ignore the real questions.

First, Justice Alito wrote one of his periodic cranky dissents in Allen v. Milligan, in which a five-member majority^[1] held, shockingly, that the Voting Rights Act of 1965 allowed a court to take into account disproportional impact on black voters of a proposed congressional redistricting. Justice Alito argues that the sole relevant factor is legislative intent, so that a redistricting map could be set aside only if it could be proved that the legislature drew the map to as to disenfranchise minority voters.  There are, of course, numerous problems with this theory. First, as has been pointed out time and again, legislatures don’t have intent; legislators do, and those intents will be as varied and numerous as the representatives voting on the bill. Second, it would be highly unlikely to find a bill entitled “An Act to Reduce Minority Participation in Congressional Elections.” Not even a Texas school board member would be that dumb. Nor is it likely to find congressional testimony in which a member expressed his motives to reduce minority representation.^[2] So Alito would exclude the very question – whether a law knowingly enacted in the face of evidence that it will diminish black representation (the very evil that the Voting Rights Act was designed to combat) can’t be asked, without a showing of subjective intent. Not even common-law murder would have required that high a level of intent.

From there it got worse. As has been well publicized, the Wall Street Journal published a pre-emptive “reply” from Alito to a Pro Publica article regarding complimentary travel benefits from Paul Singer,^[3] a hedge fund billionaire who subsequently had multiple cases before the Court. In 2008, Alito accepted a seat on Singer’s private jet to an Alaska fishing lodge, plus room accommodations at more than $1,000 a day, flying Alito got a heads up that the article was coming, because Pro Publica, in good journalistic practice, informed him that it was working on the article, sent him a list of specific questions, and asked him for any comments he might have. The Wall Street Journal piece did not particularly attempt to answer any of Pro Publica’s questions. Instead, it simply went off on a rant about how no reasonable person could think either that he should have recused himself from Singer’s cases, or at least reported the gift. Alito, who seems to be, as Charles Dickens said of Archbishop Laud. “a man of large learning and small sense, claimed: 

• No unbiased and reasonable person could think that his relationship with Mr. Singer would influence him in ruling on a case to which Mr. Singer was a party, even though travel experts estimated the value of the trip at over $100,000.
• In fact, the free flight had no value, because “(Singer) allowed me to occupy what would have otherwise been an unoccupied seat on a private flight to Alaska” Try that argument out on United Airlines next time you board a less than full airplane. (Alito is so impressed with this argument that he makes it twice in a one-page article.)

The gist of Alito’s argument was that the public criticism of the Court undermines public confidence in the Court (which, it seems to me, the Court is doing a very fine job of on its own.) 

This did not go well for Alito. His “prebuttal” served only to draw attention to the article, which probably would have otherwise gone relatively unnoticed. Ethics scholars across the nation weighed in, opining that at a minimum Alito should have disclosed the trip, and probably skipped it. Accompanying the Pro Publica story was a picture of Alito holding a large salmon, looking slightly green, like the kindergarten girl asked to pet a boa constrictor. Worse, the N. Y. Times wrote an article asking whether Alito was the dumbest justice on the Court today, given the total mishandling of the matter.

The main impact of Justice Alito’s screed was to provoke the Associated Press into writing a multi-day piece on the questionable ethics of the Supreme Court justices. We hear, for instance, that all of them accept off-term speaking or teaching engagements all over the world, that bring with them paid luxury travel arrangements including first-class airfare. The classes seem to be of the type popular with just graduated college seniors: go to Oxford or Florence or some other plum spot, have a non-credit course on Shakespeare or the Renaissance for an hour a day, and spend the rest of your time touring or pub crawling. For example, Justice Gorsuch regularly teaches a summer course for George Mason University in Padua, with airfare his family, housing, and side trips to Bologna and Venice. Last year, he chose Reykjavik rather than Padua, but either the teaching or the travel was so onerous that he brought Justice Kagan along, at the University’s expense, to take one day of lectures.

Justice Thomas’s cozy relationships with wealthy conservative donors has been well documented. But the AP tells us that many of them are frequent speakers at private functions attended by wealthy university donors, even though court rules prohibit them from participating in fundraising activities. Justice Sotomayor goes on regular book signing tours and requires the hosts to guarantee sales of several hundred copies of her autobiography or one of several children’s books published under her name, often using court staff to twist the arms of the hosts. (Say it ain’t so, Sonia.) And there appears to be no real support among the justices for adopting the rules of judicial conduct that apply to every other federal judge. (More about all of this in my next post).

In the face of this reluctance to act, the Senate steps in, and advances through committee a bill to impose ethics rules on the Supreme Court. (Currently, there is an ethics code developed and adopted by the federal judiciary, but it does not apply to the Supreme Court, ostensibly because the Court is created by the Constitution itself.) Never one to say nothing when he has the opportunity to say something insulting, Alito last week returned to the pages of the WSJ for a nose-thumbing interview, asserting that “no provision in the Constitution gives (Congress) the authority to regulate the Supreme Court – period.” That is a matter that scholars can debate. What is not beyond serious debate is that the common law, which the Constitution does not purport to repeal, has centuries-old principles of judicial conduct and disqualification. Further, Marbury v. Madison, in which the Court aggregated to itself the power to declare statutes unconstitutional, itself bases its substantive decision on principles of common law.So, while we may agree or disagree about whether a statutory code of judicial conduct would be constitutional, Alito’s suggestion that the Supreme Court reports to no one or no principle, other than ones announced by itself, is, quite literally, arrogant. If Alito is right, there is no external authority that could prevent him from ruling on a case in which he, or a family member, is a party. Or in which he previously worked as a lawyer for one of the parties. Or that stands to enhance the value of his investments given a certain outcome. This can’t be the law, and Alito knows it. Nevertheless, take note of this: the WSJ column recounting the interview was co-written David Rivkin, the lawyer to Leonard Leo, who arranged the Alaska trip. Rivkin, as it turns out, also will argue a tax case before the court in the coming term. Will Alito recuse himself? I doubt it. Which proves Juvenal’s point. There’s no need to make satire up; the scoundrels around us do just fine.

^[1] Technically it is only a plurality opinion, because Justice Kavanaugh did not join in one portion. However, five judges voted for the result.

^[2] One of the arguments made was that it is constitutional to draw maps to benefit the majority’s political party, even minority suppression was a byproduct.

^[3] Not to be confused with the Australian moral philosopher Peter Singer. As if.