WASHINGTON — Nearly 20 years ago, during the 2004 winter break of the Supreme Court, Justice Antonin Scalia took a free ride on a Gulfstream jet, hitchhiking with Vice President Dick Cheney in a government jet. The two men were duck hunting in Louisiana.
The trip grew into a controversy, as the court had recently agreed to hear a case in which Mr. Cheney was a party. Lawyers for the other side asked Judge Scalia to disqualify himself, and he issued a belligerent 21-page memorandum refusing to do so.
Aspects of that memo are instructive to reflect on the lavish vacations, including travel in a private jet, that Harlan Crow, a wealthy Republican donor, has provided over the years to Judge Clarence Thomas and his wife, Virginia, as described by the news organization ProPublica.
Unlike Mr. Cheney, Mr. Crow is not known to have done any business in court, so the two cases are hardly identical. But Judge Scalia’s discussion of whether the plane trip was a gift, what it was worth, and whether it should be made public helps clarify the legal standards that apply to Judge Thomas’ travels.
In his memo, Judge Scalia, who died in 2016, acknowledged that traveling on the Gulfstream was fun. “Certainly,” he wrote, “flying on the Vice President’s jet was more comfortable and convenient than flying commercially.”
But he disputed an allegation in the motion asking for his disqualification that he, and members of his family who accompanied him, had received a gift worth “thousands of dollars.”
“Our flight down cost the government nothing, as space availability was the condition of our invitation,” Judge Scalia wrote. And while our flight on the vice president’s plane was indeed free, we bought (because they were the cheapest) return tickets (because they were the cheapest) which were exactly as expensive as we would have paid if we were both down gone, because we did not return with him. and back on commercial flights. In other words, none of us saved a dime by flying on the Vice President’s plane.”
According to ProPublica, a nine-day trip to Indonesia provided by Mr Crow, including travel by private jet and yacht, would have cost Judge Thomas $500,000 had he chartered the plane and yacht himself.
Judge Scalia debated whether his flight with Mr Cheney should be made public, concluding that “social courtesies provided at government expense” need not be.
“The Ethics in Government Act of 1978, which requires annual reporting of transportation provided or reimbursed, excludes from this requirement transportation across the United States,” he wrote.
Overall, however, Justice Scalia did not dispute that the law — which applies to “judicial officials,” including “the Chief Justice of the United States” and “the associate justices of the Supreme Court” — was binding on him.
In his 2011 year-end report on the state of the federal judiciary, Chief Justice John G. Roberts Jr. said. that the constitutionality of the law had not been tested, but that he and his colleagues obeyed it.
“Congress has directed judges and judges to comply with both financial reporting requirements and restrictions on receiving gifts and outside income,” he wrote. “The court has never ruled on whether Congress can enforce those demands on the Supreme Court. The judges nevertheless adhere to those provisions.”
Judge Thomas ordered the flights on Mr. Crow’s jet undisclosed. In a brief statement released after ProPublica disclosed the travels, Judge Thomas said unnamed “colleagues and others in the judiciary” had told him that “this kind of personal hospitality from close personal friends, who had no business in court, was not reportable.”
He added that the United States Judicial Conference, the policy-making body for the federal courts, recently issued new guidelines requiring disclosure of private jet travel and stays at commercial properties such as resorts.
“It is, of course, my intention to follow these guidelines going forward,” Judge Thomas said.
In his 2004 memorandum, Judge Scalia said he could hear the case involving Mr Cheney because the vice president had been charged in his official capacity, adding that there were charges for questioning the ethics of the judges of the Supreme Court.
“While the political departments may be able to survive the continued baseless allegations of impropriety that have become the staple of Washington reporting, this court cannot,” he wrote. “The people must have confidence in the integrity of the judges, and that cannot exist in a system that assumes they are corruptible by the slightest friendship or favour, and in an atmosphere where the press will be eager to find.”
Judge Scalia later joined a seven-judge majority in refusing to force Mr. Cheney to disclose classified documents from an energy task force.
After Judge Scalia issued his memorandum in 2004, I asked six legal ethics experts for their response. One of them, James E. Moliterno, now a law professor at Washington and Lee University, focused on jokes made at the expense of justice.
“I have received,” wrote Judge Scalia, “a great deal of embarrassing criticism and negative publicity in connection with the matters at issue here—even to the point that (as the motion cruelly but accurately puts it) it is “fodder for the late night.” ‘ is becoming. comedians.’”
Twenty years later, Judge Thomas’ travels have also been a gift to a new generation of nocturnal hosts.
In 2004, Professor Moliterno said the jokes stung for a reason. “If the norm is appearances of impropriety,” he said, “sometimes late-night comics have a sense of how things appear to the audience.”
