New Report Raises Questions About What SCOTUS Justices Are Doing in Their Downtime

As Americans, we often take as given that the Supreme Court operates mostly out of public view. It’s part of the historic mystique of the court. But handling cases is only a portion of what the justices spend their time doing; the softer side of a justice’s professional life entails a great deal of speaking, educating, and interacting with the legal academic community. Watchdog group Fix the Court looked into the justices’ practices and released a report entitled, “When Justices Go to School: Lessons from Supreme Court Visits to Public Colleges and Universities.” In the group’s own words, its goal was “not to dig up dirt or expose sensitive information about the justices,” but rather “to learn more about how the court and its members operate beyond the rarified air of One First Street.”

Primarily, the report focused on the logistics and finances of the justices’ trips to public colleges and universities. Some of what was reported raises some questions, and some was just weird. Here are some of the juicier highlights.

Travel

What was most noteworthy about the report’s findings on the justices’ travel was the wide range of travel costs. Usually, when traveling to a university, justices appear to stay in in mid-priced hotels and travel coach class. Maybe you sat next to one of them without even knowing it.  Occasionally, though, they’ve been using university-owned private jets or higher-priced Acela trains (which many would argue don’t quite qualify as posh or costly travel vis-a-vis a private jet or even coach class on a commercial flight).  There was one instance of Justice Elena Kagan attending a football game while at the University of Wisconsin and staying in a hotel costing over $1,000 per night.  Kagan’s security team stayed there, too, bringing the likely bill around the $5,000 mark for a weekend trip.

Fundraisers

The entire idea of fundraising by SCOTUS justices is a little hazy. The Code of Conduct for U.S. Judges prohibits the participation in fundraising efforts of any kind. However, that code isn’t binding on Supreme Court justices. Still, the Supreme Court justices have stated that they follow the code of conduct. In Dec. 2016, court staff told the University of Southern California Law PR director that Justice Samuel Alito “is forbidden by the Canons of Judicial Ethics from participating in any fundraising efforts for even the most worthy charities.”

That said, Justice Stephen Breyer attended a $500-per-plate private VIP dinner ahead of his talk at the University of Texas at Arlington in Dec. 2016, and Justice Kagan appeared at a 2017 dinner at the University of Wisconsin Law School for $1,000 donors.

The report concluded that while an event like these “does not run afoul of the fundraising rules for the justices, per se, it certainly comes close.”

Gifts

There’s a $390 reporting threshold for gifts received by justices; per the report, several of the justices may have failed to report some swag. Among those items were Justice Clarence Thomas’s unspecified “photo gift” from the University of Florida, Justice Sonia Sotomayor’s robe from the University of Rhode Island and some unknown object requiring “engraving.”

Justice Kagan received University of Wisconsin football paraphernalia; Justice Gorsuch got a personalized Louisville Slugger bat and a commemorative coin from the University of Louisville and silver julep cups from the University of Kentucky. Chief Justice John Roberts accepted a $200 Betsy Ross flag blanket and a gift basket worth about $20.

Security Costs

The report also brought to light some rather jarring numbers representing security costs for the justices’ visits to public schools. Often ranging in the low five-figures, significant costs were paid to the U.S. Marshals Service to keep the justices safe.  A December 17, 2015 visit by Justice Breyer to the CUNY School of Law in New York City cost $11,868 in security.  Justice Thomas taught at the Florida Levin College of Law in 2016, requiring $9,767 in security.  A visit by Justice Sotomayor to the CUNY School of Law, along with what are believed to be additional trips by additional justices to the New York region, cost $21,439 — again, an assumed sum total for multiple visits, the report concluded.  Other events cost $10,673; $15,466; $7,911; and $6,834.  And, there are others.

Media Restrictions

Few are likely surprised that Supreme Court justices might enjoy a perk from time to time. What is far more concerning, though, is what the report showed with respect to public access to the justices’ speaking events. Some of our more conservative justices, it seems, are woefully camera-shy.

When Justice Neil Gorsuch spoke at the University of Louisville, he demanded strict compliance with a no-recording policy – a policy that didn’t sit too well with university staff.

In an email written by Mark Herbert, the University of Louisville’s Director of University Programming and Production, he told Gorsuch’s team:

We’ve never had a guest speaker at the McConell center ask us to bar TV and radio recording, including Chief Justice John Roberts (2009) and Associate Justice Clarence Thomas (2000)….

Obviously we’re excited Justice Gorsuch is coming and would like to get as much positive media cover of Gorsuch, the University of Louisville and the McConnell Center as possible and we fear the event will be ignored by electronic media if the restrictions remain in place.

We would respectfully ask Justice Gorsuch and/or your office to reconsider those restrictions.

Gorsuch, however, didn’t budge. He forbade any recording, and even refused group photos with more than eight students. Same story when he spoke at the University of Kentucky – and there, students weren’t permitted to take any selfies with the justice, unless specifically invited to do so.  UK wasn’t even permitted to have its official university archivist to record Gorsuch’s talk to preserve it for posterity. A tweet was all that was allowed.

Gorsuch’s gag order appeared to mimic Justice Samuel Alito’s 2017 policy surrounding his visit to the University of South Carolina School of Law.  Alito disallowed any taping for broadcast purposes as well as any live-tweeting his remarks.

Strict no-broadcast policies aren’t unprecedented. Chief Justice John Roberts allowed a 2018 lecture at University of Minnesota Law School to be captured by cameras, but the only use he allowed of the images was to simulcast his remarks to overflow attendees in a room nearby. Justices Sotomayor and Kagan also gave lectures that were filmed and posted for a limited short time following the live event.

Fix the Court’s report concluded about these strict communications policies:

Even as we applaud the justices for taking the time to visit public universities around the country, we’d be remiss if we did not point out that policies limiting broadcast access place burdensome restrictions on access to newsworthy events – that are, no doubt, often held in rooms that cannot physically hold the number of people interested in hearing from the nation’s top jurists.

The group ended its report by advocating for additional transparency measures that are already standard within other contexts of government.  The report said, “that so many questions remain – on the costs of the justices’ travel, whom they’re meeting with, what type of gifts they’re receiving – suggests that this is an area into which we should keep digging.”

[Image via Fred Schilling/Supreme Court Curator’s Office]

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos

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