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‘Inside baseball’: Critics say academia has ‘troubling’ influence with the Supreme Court

Supreme Court And Cherry Blossoms
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(WASHINGTON) — With the marbled 14th century Palazzo Colonna as his backdrop, a tuxedo-clad U.S. Supreme Court Justice Samuel Alito approached the lectern in July 2022 to deliver a rebuke of his critics as searing as the Italian sun.

Before launching into an impassioned defense of the court’s monumental decision to overturn Roe v. Wade, made just weeks earlier, the conservative justice took a moment to thank his hosts, the University of Notre Dame Law School, “for the warm hospitality” extended to him and his wife — which included a hotel room overlooking the iconic Roman Forum.

After his speech, Alito was photographed mingling with the law school’s scholars — several of whom had only recently advocated in favor of overturning Roe in three amicus briefs filed with the court in Dobbs v. Jackson Women’s Health Organization.

The Alitos’ trip to Italy, paid for by the university, is just one example of how academic institutions have sought to leverage their ample resources for opportunities to access the justices — a play at prestige and advocacy that has contributed to an already messy ecosystem of influence-peddling on the court.

Justices appointed by presidents of both parties have for years accepted travel and honoraria from academic institutions — a tradition that has transcended ideological boundaries, as the late Justices Antonin Scalia and Ruth Bader Ginsburg repeatedly demonstrated.

And while a wave of recent reports chronicling Justice Clarence Thomas’ financial ties to a Texas billionaire alleged a more overt breach of rules and norms, an ABC News examination of how law schools engage with the court presents a more nuanced take on possible unethical conduct.

A spokesperson for the court did not respond to specific questions from ABC News. She said, “The Justices comply with the Ethics in Government Act, which permits judges to accept travel reimbursement relating to appearances and teaching engagements, and directs them to disclose reimbursements on their financial disclosure reports.”

But to critics, the existing rules remain woefully insufficient and contribute to an atmosphere of mistrust. Ethics experts warned that these relationships stand as yet another opportunity for certain voices to press their views on an institution whose credibility is already plummeting.

“So long as the justices are reporting the free trips on their annual disclosures, no laws are being violated,” said Gabe Roth, executive director of Fix the Court, a leading Supreme Court watchdog. “But it’s reasonable to be concerned about the propriety of this situation, especially with the Court’s ethics issues being top of mind.”

‘Inside baseball’

Top-tier law schools pay unknown sums to fly justices on both ends of the political spectrum across the globe for speaking engagements and teaching stints while also filing amicus briefs intended to sway the court’s high-stakes opinions.

It is an arrangement that some court watchers framed as “inside baseball,” and one that they say merits more attention as Washington becomes increasingly aware of the gaps in justices’ financial disclosures.

“If an entity’s stated goal is to influence the outcome of legal cases — and that’s the purpose of many of these amicus briefs — the fact that any justice would accept compensation or travel expenses to a desirable foreign location from that entity is deeply troubling,” said Virginia Canter, chief ethics counsel at the government ethics group Citizens for Responsibility and Ethics in Washington.

From 2004-2018, justices disclosed more than 1,300 trips where their travel and accommodations were reimbursed by third parties, according to the government accountability watchdog OpenSecrets — including several paid for by university law schools.

In 2018, Justice Neil Gorsuch reported travel-related reimbursements for a three-week trip to Padua, Italy, for George Mason University — another institution whose Supreme Court clinic frequently files amicus briefs with the court. And in 2019, Ginsburg and Justice Sonia Sotomayor filed reimbursements for travel to Lisbon, Portugal, paid for New York University School of Law.

After a lull in travel during the COVID-19 pandemic, the University of Notre Dame Law School has emerged as the most aggressive underwriter of the justices’ travel and solicitor of their teaching services.

In 2020 and 2021 alone, four conservative justices — Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett — reported payments and reimbursements for guest lectures, teaching engagements, or other events hosted by the law school.

Thomas collected nearly $20,000 from the university for a September 2021 week-long teaching stint. And Barrett reported earning almost $15,000 from the law school for teaching gigs in 2021, her first full year on the court. (Barrett, who taught at the law school since 2002, reported earning another $28,000 in 2020, the year she was nominated and confirmed to the bench.)

Already in 2023, Justice Brett Kavanaugh has traveled to London for a seminar with the school’s London Gateway program and visited its South Bend campus for a law symposium. Barrett was also reportedly expected to teach students at the law school’s London Gateway program this spring.

Justices are entitled to accept payments for teaching, so long as they seek prior approval from the chief justice. In fact, according to an existing ethics statement signed by all nine members of the court, engagement with academic institutions is encouraged, “to avoid isolation from the society in which they live and to contribute to the public’s understanding of the law.”

But Richard Painter, a former chief ethics counsel to President George W. Bush, suggested that “all the wining and dining of justices” by Notre Dame could cross ethical lines and present the appearance of impropriety and conflicts of interest. Justices, unlike members of Congress, are not required to put a dollar amount of reimbursements for travel expenses or meals, further complicating transparency efforts.

“I think they’ve gone too far when they’re flying the justices to Europe,” he said. “They shouldn’t be doing that.”

Marcus Cole, dean of Notre Dame Law, said in a statement to ABC News that “visits by members of our nation’s highest court have been valuable learning opportunities for our students and the broader campus and local communities.”

Amicus advocacy

Concerns about the possible impact of the ties justices’ teaching and speaking engagements may foster with law schools come into sharper relief for court watchdogs as scholars file amicus briefs with the court — legal documents that provide broader legal context and judicial justifications to support certain positions in cases before the court.

Since 2020, when Notre Dame launched its Religious Liberty Initiative, faculty and board members of the initiative have filed briefs in at least ten cases before the court. Of those ten cases, the court has overwhelmingly voted in favor the positions taken in briefs filed by the Notre Dame-associated figures.

Experts emphasized that the court currently holds a conservative majority, so the fact that their opinions reflect a conservative ideology cannot necessarily be attributed to the university law school’s advocacy.

Some amicus briefs filed by Notre Dame scholars extend beyond the school’s Catholic foundations. But the school’s faculty has been most active in advocating for conservative legal causes and providing a Catholic perspective on issues like abortion before a court that has shown itself to be sympathetic to those views — and where six of the nine justices identify as Catholic.

Last week, for example, the justices heard arguments in Groff v. DeJoy, which highlights a dispute pertaining to a part-time mail carrier who resigned after the Postal Service required him to work on the Sabbath.

The Religious Liberty Initiative’s amicus brief in Groff, which urged the court to side with the mail carrier, highlights another aspect of the issue: personal relationships.

Richard Garnett, a Notre Dame law professor who signed onto one of the school’s amicus brief in the Groff case and a faculty fellow with the Religious Liberty Initiative, is a longtime friend and neighbor to Justice Barrett. Barrett is a godmother to one of Garnett’s daughters and co-hosted a baby shower for his wife, Nicole Stelle Garnett, another faculty member at the law school and a faculty fellow with the Religious Liberty Initiative.

Liberal members of the court also have financial ties to academic institutions. Justice Elena Kagan, for example, served as the dean of Harvard’s law school before her appointment to the Supreme Court in 2010. From 2011 to 2021, Kagan reported earning $140,500 from Harvard Law for teaching gigs and unquantified reimbursements for travel expenses each year of those years — sometimes multiple times each year.

Meanwhile, the Harvard Supreme Court Litigation Clinic frequently files amicus briefs with the court, and one of its instructors, Kevin Russell, recently argued a case before the justices. Kagan has so far declined to recuse herself from a high-stakes affirmative action case in which Harvard is a party, raising questions about whether the former dean can be impartial on the matter.

Ethics experts said amicus briefs have emerged in recent years as a more explicit way to influence the court’s rulings. Marci Hamilton, a constitutional law scholar at the University of Pennsylvania, said that, like traditional lobbying in the other branches of government, “if justices see an amicus brief by someone they’re connected to, they’re reading those.”

But unlike lobbying, experts said, there are very few rules dictating who can or cannot file amicus briefs — only a disclosure certifying that attorneys who signed onto the amicus did not represent or financially back any party in the case at hand.

These types of briefs have become more prevalent features of Supreme Court deliberations in recent years, and experts have raised concerns with close friends of the justices involving themselves in cases before the court.

“More and more amicus briefs are being used to influence the court’s decisions to a degree that they take on the form of a lobbying activity,” said Canter, “and there’s nothing to regulate ethics issues that arise from accepting tens of thousands of dollars from an educational sponsor of these types of amicus briefs while providing members of the Court compensation for teaching activity or reimbursing them for travel costs to desirable foreign locations.”

Cathleen Kaveny, a professor of law at Boston College, expressed concern with the increasingly close ties between the two entities, but urged caution on casting the relationship as one tethered to money or influence — instead framing the justices and their academic ties as being more deeply rooted in an existing “sympatico” view of the world.

“There’s a certain intellectual alignment already in place,” Kaveny explained. “I don’t think these justices are doing it for the money — they’ve got a shared vision of how things should be.”

Even so, Kaveny said, “any time a Supreme Court looks like it’s captured by an interest group, its credibility is diminished.”

Transparency push

Reports in ProPublica and elsewhere about Justice Thomas’ relationship with Harlan Crow, a Texas billionaire and Republican megadonor, have renewed calls for ethics reform at the Supreme Court — which Roth has called “America’s most powerful, least accountable government institution.”

Crow bankrolled transportation and accommodations for Thomas and his wife to far-flung destinations like Indonesia and New Zealand. These vacations and others to Crow’s own properties reportedly included lavish trimmings, including use of billionaire’s private jet, yacht, and chef.

None of those gifts appeared on Thomas’ annual financial disclosure reports — omissions that attracted bipartisan condemnation. But Supreme Court watchers noted that even the entries that justices report lack key information.

In Alito’s case, details of his trip to Rome won’t become public until this summer, when financial disclosure forms for 2022 are due. Even then, those filings may not include information about how much money the law school paid to reimburse his expenses, whether his wife’s expenses were paid for, or details on their accommodations — including that hotel room in the heart of Rome.

Advocacy groups and lawmakers have pushed to change that. A bill proposed by Sen. Sheldon Whitehouse, D-R.I., would require the court to adopt a “code of conduct” akin to what is imposed on members of Congress, who must report specific dollar amount of gifts within a month of receiving them.

Sens. Angus King, I-Maine, and Lisa Murkowski, R-Alaska, introduced a separate bill this week that would require the court to appoint an official to handle any violations of a code of conduct.

Earlier this month, Senate Judiciary Committee Chairman Dick Durbin, D-Ill., invited Chief Justice John Roberts testify at a public hearing about Supreme Court ethics reform. Lawmakers have also encouraged the chief justice to launch his own investigation into Thomas’ relationship with Crow.

Roberts this week declined Durbin’s invitation, responding in a letter that a chief justice’s testimony before Congress is “exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”

Durbin said his committee would move forward with a hearing on May 2 to review proposals for tighter oversight of the court.

“Make no mistake,” Durbin said in a statement on Tuesday. “Supreme Court ethics reform must happen whether the Court participates in the process or not.”

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