Supreme Court Justice Antonin Scalia’s free stay at the secluded Texas ranch where he died highlights questions about what gratuities judges can accept and whether they should socialize with people who could have litigation before the courts, legal experts say.
When he suddenly passed away Saturday, Scalia was on a hunting trip at Cibolo Creek Ranch, a high-end resort near the Mexican border that has played host to movie stars and European royalty. While there, he joined about 35 other invited guests for a weekend that included a hunt for blue quail and an all-expenses-paid private party.
Ranch owner John B. Poindexter said he footed the bill for Scalia’s accommodations, but not the chartered flight on which the justice arrived at a private airstrip on the property. Rooms range from $400 to $800 a night, according to the ranch website. “He was an invited guest, along with a friend, just like 35 others,” Poindexter told The Washington Post in an email. “The Justice was treated no differently by me, as no one was charged for activities, room and board, beverages, etc. That is a 22-year policy.”
Not everyone, however, is a jurist on the nation’s highest court with the power to influence landmark legal decisions. Scalia’s exalted status, combined with the continued mystery over who was with him at the ranch, raises concerns that other attendees could have tried to influence the justice in some way, said Stephen Gillers, an expert on legal and judicial ethics at the New York University School of Law.
“People worry at those kinds of things; there’s a creation of access on the part of people with an interest in the courts, and that is unfair,” said Gillers, who compared the issue to the unease that arises when judges and officials from major companies mingle at seminars or educational events.
As Washington prepared for Scalia’s body to lie in repose at the Supreme Court on Friday, questions lingered about his final trip. Among them: Did the justice pay for his own airplane ticket to the ranch, or did someone else pick up the tab? Who else was in Scalia’s party? What is the nature of Scalia’s relationship with Poindexter?
Poindexter, a third-generation Texan and highly successful Houston manufacturing magnate, declined to identify Scalia’s guests or comment on who else was in attendance. One of Poindexter’s companies was recently involved in litigation considered by the high court. Last year, the justices declined to hear a case involving an age-discrimination lawsuit filed against one of those companies, court records show.
Scalia, along with several other justices, had been criticized for associating too closely with potential litigants before the high court. The justice had vehemently insisted such socializing did not influence his judicial opinions.
The rules are vague on what gifts judges can accept.
The 1978 Ethics in Government Act, passed in the wake of the Watergate scandal, requires all federal judges – including Supreme Court justices – to file reports outlining their outside income, gifts they received and occasions where they were reimbursed.
Judges must report reimbursements related to travel totaling $335 or more, according to filing instructions posted by the group Judicial Watch. These instructions include an exemption for “food, lodging or entertainment received as a personal hospitality,” which includes a stay at a property owned by a person. As a result, it is unclear if Scalia’s stay would have been reported, Gillers said. Travel, however, is not exempt.
Expense reports filled out by Scalia and the other justices show that these reimbursements covered expenses such as transportation, lodging, food or entertainment, but the justices were not required to report more than the source of the reimbursement, purpose of the trip and when and where it occurred.
The Supreme Court publicly releases the disclosure reports each year, amid occasional criticism about how non-specific they are. In 2014, for example, Justice Sonia Sotomayor wrote on hers: “During 2013, many people sent me gifts of books, art, jewelry and memorabilia. I have no reason to believe that any of those items exceeded the $350 limit.”
A review of Scalia’s recent financial disclosure reports posted online by OpenSecrets.org shows that, like his colleagues, he regularly filed for unspecified reimbursements from universities, legal societies and other organizations after making trips for lectures and speeches, including the conservative Federalist Society. Scalia was among the court’s most active travelers. However, these disclosure forms offer scant details about who else attends events with the justices.
The biggest ethical questions involving justices is when they should recuse themselves from cases, Gillers said. “Is the justice the final arbiter of whether or not he has to recuse himself? And the answer is yes,” he said.
He pointed to perhaps the most famous case involving a justice and recusal, which involved Scalia after the justice joined then-Vice President Richard B. Cheney on a hunting trip while Cheney was the subject of a lawsuit over his energy task force. In response to calls that he sit out the case, Scalia issued a highly unusual 21-page argument explaining his refusal.
“A rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling,” Scalia wrote, noting that justices have frequently been appointed throughout American history precisely because they are close to the president or other administration officials.
Other justices have also faced calls for recusal. Justice Elena Kagan, who served as the Obama administration’s solicitor general before her appointment, dismissed suggestions to recuse herself from decisions on the Affordable Care Act. Kagan had said that while in the administration she was not involved in preparations for legal challenges the health-care law would face.
In his 2011 report on the state of the federal judiciary, Chief Justice John G. Roberts Jr. defended the court’s policy of allowing justices to decide for themselves if they should step away from certain cases, insisting that they are capable of making their own decisions.
Roberts issued his report at the end of a year in which more than 100 law professors asked Congress to require Supreme Court justices to abide by an ethical code of conduct after it emerged that Scalia and Justice Clarence Thomas had attended private political meetings sponsored by billionaire conservative donors David and Charles Koch. That same year, a watchdog group said Thomas had failed to report his wife’s income from a conservative think tank before he amended his financial forms.
“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Roberts wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”