Bloomberg Law
March 30, 2023, 4:26 PM

Justice Disclosure Rules Are a Good Start, But It’s a Low Bar

Gabe Roth
Gabe Roth
Fix the Court

On Feb. 12, 2016, Supreme Court Justice Antonin Scalia flew from Reagan National Airport in Virginia to Houston’s Hobby Airport. He transferred there to a private plane that took him to Western Texas, where he was to stay at John Poindexter’s Cibolo Creek Ranch in the $700-per-night El Presidente suite for free. Scalia ultimately died later that night or early the next morning in his sleep.

Had Scalia lived and filed the financial disclosure report that all federal judges and justices must file, it’s easy to imagine that the justice, as someone who was friends with Poindexter, would have omitted the entire trip. (The estates of deceased justices do not file posthumous disclosures.) That omission would have been permitted under the judiciary’s “personal hospitality” reporting exemption at the time.

Time to File Expense Reports

But thanks to new rules adopted by the judiciary earlier this month, any judge or justice who receives a gift of free travel or a free overnight stay from a friend must now report it if includes non-commercial airfare, like a ride on a private plane, or if it includes a free stay at a commercial property, like a hotel or ranch, even if that property is owned wholly or in part by that friend. (Cibolo Creek Ranch is a commercial property held by a corporation called Southwestern Holdings, which is controlled by Poindexter.)

The rules, which came about after years of lobbying by lawmakers, led by Sen. Sheldon Whitehouse, and advocacy groups, are a step in the right direction. Just because a public official says someone is their “friend” doesn’t mean they should be able to omit the perks they receive from that friend from their disclosure.

That’s especially the case when said friend is a litigant in your courtroom. You may recall that a company controlled by Poindexter, MIC Group, had a petition at the Supreme Court a few months before Scalia’s visit to Cibolo Creek (cert. denied, meaning a win for Poindexter, with no Scalia recusal).

Scalia is hardly the only justice known to enjoy a ride in a private plane or a free stay at a resort. According to Justice Stephen Breyer’s 2013 disclosure, his airfare to Nantucket, likely private, was paid for by private equity tycoon David Rubenstein. It was reported in 2011 that Justice Clarence Thomas has been hosted on the private jet of GOP megadonor Harlan Crowe, and the flights have never made Thomas’ disclosures.

In fact, nearly all the justices who’ve served in the last few decades have taken trips to far-flung locales that did not appear on their disclosures. That should change under the new rule.

More Oversight Needed

And yet, we need even greater oversight of the third branch, as federal judges’ and justices’ travel and gift reporting rules remain less stringent than those in the other two branches—and for no good reason, with the judiciary arguably now the most powerful part of our federal government.

I hope Congress pursues legislation, along the lines of the bipartisan Judicial Travel Accountability Act, last introduced in 2019, that would bring judicial travel reporting in line with that in the legislative and executive branch.

Consider this: If a member of Congress plans to take a free trip, whether to a hotel a friend owns or to a foreign country, the lawmaker first has to get approval from the House or Senate Ethics Committee, and then within a month of their return, they must file a report that lists who paid, the total cost of the trip, and who else attended.

All we still have in the judiciary, even with the new rules on personal hospitality, is a vague, annually reported line in Part IV of judges’ and justices’ disclosures that says “Organization X” paid for a judge’s “transportation, meals, and hotel,” and without any dollar amounts. That doesn’t cut it.

Part of building a modern democracy is ensuring that public officials, no matter where they serve, abide by clear, consistent, and fairly stringent ethics and oversight rules, so the public can preserve its trust in them.

Narrowing judges’ and justices’ personal hospitality exemptions is a good start. But we still have a ways to go.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Gabe Roth is executive director of Fix the Court, an organization that advocates for non-ideological “fixes” that would make the federal courts, and primarily the US Supreme Court, more open and more accountable to Americans.

Write for Us: Author Guidelines

Learn more about Bloomberg Law or Log In to keep reading:

Learn About Bloomberg Law

AI-powered legal analytics, workflow tools and premium legal & business news.

Already a subscriber?

Log in to keep reading or access research tools.