When Justice Antonin Scalia went hunting in recent years, he didn’t list the trips in his annual financial reports—to the frustration of transparency advocates who want to know who the justices spend time with off the bench.
But not all private travel is private for justices and federal judges.
Financial reports filed by Scalia and other justices and federal judges reveal that certain vacations and private trips do indeed become public. Whether or not a trip remains secret hinges on any exchange of money. If a justice or judge is hosted at someone’s home and otherwise pays his or her own way, it stays private. Disclosure is required when a private group or someone who isn’t a relative pays for a judge’s airfare or other travel expenses, or gives a gift valued at more than $350.
This distinction goes to the heart of what the federal Ethics in Government Act is concerned with: Not necessarily who a judge or justice associates with, but whether they get anything of monetary value that could pose a conflict of interest or the appearance of a conflict. The ethics law requires the justices and other public officials to file annual financial reports.
In these reports, justices and judges typically use only a word or two to explain a reimbursed trip—“lecture,” “speech,” and “moot court” are common entries. They don’t have to say who they talked to or met with.
Scalia was found dead on Feb. 13 at age 79 at the Cibolo Creek Ranch in West Texas, where he was staying as a guest of the ranch’s owner, John Poindexter, according to news reports. Poindexter owns the manufacturing company J.B. Poindexter & Co.
Cibolo Creek Ranch is a business—rooms rent from $350 to $800 a night—but the Ethics in Government Act says public officials don’t have to disclose gifts of “personal hospitality.” That’s defined as lodging or meals at a home or other property that the host owns.
Under the reporting rules, Scalia would have needed to disclose the Texas trip if someone else paid for his airfare or other travel expenses. It’s unknown if Scalia paid his own way to the ranch. Poindexter told The Washington Post that he didn’t cover Scalia’s travel costs.
Here’s an example of a trip Scalia did report: In August 2010, Scalia attended the wedding of close friend Bryan Garner. Scalia officiated at the ceremony. Unlike his hunting excursions, Scalia listed the trip to Newport, Rhode Island, on his financial report. Garner paid for the justice’s transportation, lodging and meals, according to the report.
The Washington Post noted that the Supreme Court last year declined to review an age discrimination case against a J.B. Poindexter & Co. subsidiary, MIC Group. That Scalia accepted Poindexter’s hospitality months later troubles Gabe Roth, executive director of Fix the Court, a group that advocates for greater court transparency.
Roth thinks that justices should present their travel plans to an independent ethics officer for review, similar to ethics reviews that take place in the White House and in Congress. (He also wants the judiciary to publish the justices’ annual financial reports online. Under the current system, only hard copies are available.)
The lack of independent review and greater transparency about the justices’ trips “raises the specter that there could be some wrongdoing,” even if there isn’t any actual misconduct or ethical breach, Roth said. “The more you hide, the more people will assume you’re trying to pull a fast one on them.”
Justices not bound by conduct code
The Ethics in Government Act was enacted in the aftermath of the Watergate scandal. It required federal judges and other officials in the executive and legislative branches to disclose an array of personal financial information, including outside income, reimbursed travel, gifts and stocks.
Chief Justice John Roberts Jr. noted a few years ago that the high court never addressed if Congress had the authority to impose the reporting requirements on the justices. Still, he said, they follow the law.
The justices aren’t bound by the Code of Conduct for federal judges, but they’ve said that they turn to it for guidance. Separate judiciary guidelines about accepting gifts also don’t officially apply to the justices. The high court approved an internal resolution in 1991 agreeing to follow those rules, according to Roberts.
In 2013, Justice Stephen Breyer traveled to Nantucket for a wedding. It showed up on his financial report because David Rubinstein, a philanthropist and co-founder of The Carlyle Group L.P., flew him there. The justice reported it in the “reimbursements” section of his report, meaning he didn’t have to disclose the value of the flight.
Judge Jose Cabranes of the U.S. Court of Appeals for the Second Circuit reported a 2014 trip to Bermuda on a private plane. But unlike Breyer, he listed the flight in the “gifts” section, which requires a dollar amount. The flight, a gift from investors Michael Vlock and Karen Pritzker, was valued at $845. Cabranes declined an interview request through a court spokeswoman.
Gifts of lodging that don’t involve staying on someone’s personal property must be disclosed under the rules, even if the trip is social. If Poindexter didn’t own Cibolo Creek Ranch and had paid for Scalia to stay there, the justice likely would have reported the trip.
Sixth Circuit Judge Jeffrey Sutton reported a 2014 trip to New Zealand because a friend—the best man at his wedding, Sutton told The National Law Journal—paid for part of the hotel expenses.
Speaking (and then hunting)
All of the justices travel annually to speak and teach, with their expenses paid for by the law schools, lawyer organizations and other private groups that host them, according to a review by The National Law Journal of financial reports filed over the past five years. The reports were obtained by the NLJ or through OpenSecrets.org.
The bulk of reimbursed travel reported by justices was paid for by law schools and lawyer groups that invited them to speak and teach. The weddings that Breyer and Scalia attended were rare examples of other types of personal travel included in the justices’ reports during that time period.
Scalia’s hunting trips sometimes coincided with speaking engagements that he reported because the host law school paid for his travel expenses.
In December 2014, Scalia and Justice Elena Kagan went hunting in Mississippi with retired federal judge Charles Pickering Sr. and Mississippi Secretary of State Delbert Hosemann, according to news reports. That excursion wasn’t on the justices’ financial reports, but their trip to Mississippi was listed. The University of Mississippi School of Law paid for the justices’ travel expenses to come speak to students that week.
In April 2015, Scalia traveled to Arkansas to speak at Arkansas State University-Mountain Home. While he was there, a local news station reported that he stayed at the home of James Carroll for a fishing and hunting trip. Carroll, a senior counsel to Mississippi law firm Carroll Warren & Parker, did not return an interview request.
Judges are allowed to accept hospitality from lawyers under the federal judiciary’s ethics guidelines. It’s up to each judge to decide the “appropriate extent” of those relationships and when a friendship with a lawyer might warrant recusal from a particular case.