WASHINGTON — Almost 20 years ago, during the Supreme Court’s winter recess in 2004, Justice Antonin Scalia took a free ride on a Gulfstream jet, hitchhiking with Vice President Dick Cheney on a government plane. The two men were duck hunting in Louisiana.
The trip became controversial because the court recently agreed to hear a lawsuit in which Mr. Cheney is a party. Attorneys for the other side asked Justice Scalia to disqualify himself, and he issued a scathing 21-page memorandum refusing to do so.
Aspects of this memo are instructive when reflecting on the lavish vacations, including private jet travel, that Harlan Crowe, a wealthy Republican donor, has provided Judge Clarence Thomas and his wife, Virginia, over the years, as detailed in the news organization ProPublica.
Unlike Mr Cheney, Mr Crowe is not known to have had any business before the court, so the two cases are hardly identical. But Justice Scalia’s discussion of whether the plane ride was a gift, what its value was, and whether it needed to be disclosed helps illuminate the legal standards that apply to Justice Thomas’ trips.
In his memo, Justice Scalia, who died in 2016, acknowledged that the Gulfstream ride had been enjoyable. “Of course,” he wrote, “flying the vice president’s plane was more comfortable and convenient than flying commercially.”
But he disputed the claim in the disqualification motion that he and his accompanying family members received a gift worth “thousands of dollars.”
“Our flight down was of no cost to the government, as the available seat was a condition of our invitation,” Justice Scalia wrote. “And even though our flight on the vice president’s plane was really free because we weren’t coming back, we bought (because it was the cheapest) round-trip tickets that cost exactly what we would have paid if we had both gotten off and back on commercial flights. In other words, none of us saved a cent flying the Vice President’s plane.
According to ProPublica, a nine-day trip to Indonesia provided by Mr. Crowe, including travel by private plane and yacht, would have cost Judge Thomas $500,000 if he had chartered the plane and yacht himself.
Justice Scalia debated whether his flight with Mr. Cheney should be disclosed, concluding that “social courtesies provided at government expense” need not be disclosed.
“The Government Ethics Act of 1978, which requires annual reporting of transportation provided or recovered, excludes from that requirement transportation provided by the United States,” he wrote.
Overall, however, Justice Scalia did not dispute that the law — which applies to “judicial officers,” including the “Chief Justice of the United States” and “associates of the Supreme Court” — was binding on him.
In his late 2011 report on the state of the federal judiciary, Chief Justice John G. Roberts Jr. said the law’s constitutionality had not been tested, but he and his colleagues had followed it.
“Congress directed judges and justices to comply with both financial reporting requirements and restrictions on receiving gifts and outside earned income,” he wrote. “The Court has never discussed whether Congress can impose these requirements on the Supreme Court. However, judges follow these regulations.
Judge Thomas did not reveal the flights of Mr Crowe’s plane. In a brief statement released after ProPublica revealed the trips, Judge Thomas said unnamed “colleagues and others in the judiciary” told him that “this kind of personal hospitality from close personal friends who had no business with the court is not reportable.’
He added that the Judicial Conference of the United States, the policy-setting body for federal courts, recently issued new guidelines requiring disclosure of private jet travel and stays at commercial properties such as resorts.
“It is certainly my intention to follow these guidelines in the future,” Judge Thomas said.
In his 2004 memorandum, Justice Scalia said he could participate in the case involving Mr. Cheney because the vice president was being tried in his official capacity, adding that there was a cost to questioning the ethics of Supreme Court justices court.
“While the political branches may be able to survive the persistent baseless accusations of impropriety that have become a staple of Washington reporting, this court cannot,” he wrote. “The people must have confidence in the integrity of judges, and that cannot exist in a system which suggests that they are corrupted by the slightest friendship or favor, and in an atmosphere where the press will be eager to find fault.”
Justice Scalia later joined a seven-judge majority that refused to compel Mr. Cheney to release classified documents from an energy task force.
After Justice Scalia issued his memorandum in 2004, I asked six legal ethics experts for their reactions. One of them, James E. Moliterno, now a law professor at Washington and Lee University, focused on pranks made at the expense of justice.
“I have received,” Justice Scalia wrote, “a fair amount of unsavory criticism and adverse publicity in connection with the issues at issue here — even to the point where I have become (as the motion cruelly but accurately states) ‘late night fodder comedians.’”
Twenty years later, Judge Thomas’ travels were also a gift to a new generation of dinner hosts.
Back in 2004, Professor Moliterno said that jokes have a reason. “If the standard is a kind of irrelevance,” he said, “late-night comics sometimes have a sense of how things look to the public.”