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Scalia defends opinion on Thomas’ travel, defends free jet travel

WASHINGTON — Nearly 20 years ago, during the Supreme Court’s 2004 winter break, Justice Antonin Scalia traveled for free on a Gulfstream jet with Vice President Dick Cheney. Cheney) on a government plane. These two were going duck hunting in Louisiana.

The trip sparked controversy as the court recently agreed to hear the case to which Mr. Cheney is a party. Lawyers for the other side asked Judge Scalia to disqualify himself, and he issued a combative 21-page memo refusing to do so.

Some aspects of the memo are instructive for thinking about luxury vacations, including travel by private jet, which Harlan Crowe, a wealthy Republican donor, has provided to Judge Clarence Thomas and his wife, Virginia, for years. These holidays, as detailed in the news organization ProPublica.

Unlike Mr. Cheney, Mr. Crowe was unaware of having had business in court, so the two cases have little in common. But Justice Scalia’s discussion of whether air travel was a gift, its value, and whether it required disclosure helped shed light on the legal standards that apply to Justice Thomas’ travel.

Justice Scalia, who died in 2016, acknowledged in his memo that traveling on Gulfstream planes was fine. “What is certain,” he wrote, “is that it is more comfortable and convenient to travel on the Vice President’s plane than on a commercial plane.”

But he disputed an assertion in the motion seeking disqualification that he and the family accompanying him received gifts worth “thousands of dollars.”

“Our flight cost the government nothing because space was available as a condition of our invitation,” Justice Scalia wrote. Returning together, so we bought (because they were the cheapest) round trip tickets for exactly what we would pay if we were flying double and back on the commercial flight. In other words, none of us saved by flying the VP penny.”

According to ProPublica, the nine-day trip to Indonesia offered by Mr. Crowe, which includes travel by private jet and yacht, would have cost $500,000 if Justice Thomas had chartered the plane and yacht himself.

Justice Scalia discussed whether his flight with Mr. Cheney had to be disclosed, concluding that “a social courtesy paid for by the government” did not need to be disclosed.

“The Ethics in Government Act of 1978 requires annual reporting of transportation provided or reimbursed, but transportation provided by the United States is exempt from this requirement,” he wrote.

In general, though, Justice Scalia did not deny that the law — which applies to “judicial officials,” including the “Chief Justice of the United States” and the “Supreme Court justices” — is binding on him.

In his 2011 year-end report on the state of the federal judiciary, Chief Justice John G. Roberts Jr. said the law’s constitutionality was untested, but he and his colleagues complied the law.

“Congress has directed justices and justices to comply with financial reporting requirements and restrictions on accepting gifts and outside income,” he wrote. these regulations.”

Justice Thomas did not reveal the flight details of the plane on which Mr Crowe was traveling. In a terse statement issued after ProPublica disclosed the trips, Justice Thomas said he was told by unnamed “colleagues in the judiciary and others” that “this kind of personal hospitality from a close friend they did not have in court business, not reportable.”

He added that the Judicial Conference of America, the decision-making body of the federal courts, recently issued new guidelines requiring disclosure of private jet travel and stays at commercial properties such as resorts.

“Of course, I intend to follow that guidance in the future,” Judge Thomas said.

In his 2004 memo, Justice Scalia said he could hear the case involving Mr. Cheney because the vice president was indicted in his official capacity, adding that there was a price to questioning the morality of a Supreme Court justice.

“While the political branch may be able to withstand the constant stream of baseless allegations of misconduct that have become a staple of Washington coverage, this court cannot,” he wrote. “The people must have confidence in the integrity of the judges, And that confidence cannot exist in a system that assumes they will be corrupted by the slightest friendship or favor, or in an atmosphere where the media is eager to find fault with their feet.”

Justice Scalia later joined a seven-member majority that refused to compel Mr. Cheney to disclose the secret energy task force documents.

After Justice Scalia issued his memo in 2004, I asked six legal ethics experts for their responses. One of them, James E. Moliterno, now a law professor at Washington and Lee University, focused on jokes at the judge’s expense.

“I have received,” Justice Scalia wrote, “an embarrassing amount of criticism and negative publicity related to the issues discussed here—even to the point of becoming (as the bill brutally but accurately states) ‘Late Night Material’ comedian.

Twenty years later, Justice Thomas’ travels have also become the gift of a new generation of late-night hosts.

Back in 2004, Professor Molitnow said there was a reason why the jokes sting. “If the standard is the appearance of inappropriate behavior,” he said, “late night comics do sometimes get a sense of how things play out in public.”

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