Supreme Court justices should observe the smell test

Alito and other justices aren't exercising basic common sense

Photo by Adam Szuscik on Unsplash

Supreme Court justices apply all kinds of tests in judging cases.

There’s the clear and present danger test and the Frye test. The latter has to do with scientific evidence.

There’s even a Lemon test. This has nothing to do with used cars; it pertains to judging cases involving the Establishment Clause.

Apparently, our justices are clueless when it comes to the smell test.

We of weak legal minds use this test to figure out whether we’re being swindled, conned or played.

Perhaps our top justices ought to climb down from the bench for a while and take a remedial course in this time-tested device.

This comes to mind as I read about Supreme Court Justice Samuel Alito’s decision to accept a ride on a private plane for a fishing trip to Alaska in 2008 with a hedge fund billionaire who later had cases before the court.

The news outlet says the plane belonged to Paul Singer. Alito didn’t recuse himself, nor did he disclose the trip. Importantly (more importantly?), ProPublica reports the head of the Federalist Society who has been working for years to steer the court to the right, helped organize the trip and got Alito a seat on the plane.

ProPublica has published a number of articles recently about Justice Clarence Thomas accepting freebies from billionaire Republican Harlan Crow.

Alito responded to the allegations in a piece published on the Wall Street Journal’s op-ed page before the ProPublica article even ran. ProPublica had sought comment from Alito, and he instead got out in front of the story.

Alito said he didn’t know Singer had business before the court, and he disputed elements of ProPublica’s reporting.

His ideological allies, meanwhile, attacked the reporters.

Judicial junkets have been in the news lately.

Mostly, the focus has been on conservative justices. But they’re not alone in logging frequent flier miles on somebody else’s dime.

The New York Times editorial board wrote a piece earlier this year that said the late Justice Ruth Bader Ginsburg went on a private tour of Israel in 2018, paid for by a billionaire who has had business before the court. And, it added, “many other justices have taken questionable trips over the years….”

The Center for Responsive Politics reported in 2019 that justices had disclosed 1,300 trips since 2004 that were paid for by third parties.

Why are justices taking these freebies?

It’s not like they’re making poverty wages. Supreme Court justices earn $285,000 a year. The chief justice makes $298,000.

For that kind of cash, you might not be able to fly private, but a first-class ticket on United isn’t beyond reach.

I’m sure many of these trips are legit. Expenses for appearances for a purely public purpose and with no ties to self-interested people and organizations ought to be reimbursed. But hunting and fishing trips to expensive lodges? Junkets on private planes?

This is where the smell test should be applied.

I don’t think every freebie is from somebody looking for preferential treatment. But I’d be suspicious. Especially when it’s being served up by someone with business before the court or arranged by somebody whose job is to push the court in a specific direction.

So, justices: Apply the smell test. And if you’re not sure whether the benefactor has an angle, then investigate. I hear you’re good at research.

Thirteen-hundred disclosed freebies over 15 years? Some of these had to have an odor. The ones that weren’t disclosed are surely questionable.

Over 30 years covering politics, I’ve heard it said that judges and legislators shouldn’t be expected to lead monastic lives; that they’re entitled to friends, even rich ones. And what of it if somebody wants to give a justice a free ride on his private jet? As long as they don’t talk business, it’s OK.

I don’t buy it. I don’t expect justices to be monks, but when you’re the country’s most powerful arbiters of the law, when the constitutional rights of every American hang on your opinions, there are some things you just can’t have. That’s the price for such immense power and lifetime job security.

More importantly, justices should be smart enough to know when these freebies are being offered, it’s not for nothing.

They ought to realize Americans know it, too; that Americans know how to apply the smell test. And they aren’t fooled by artfully worded excuses that try to rationalize what, on its face, is inexcusable.

This just smacks of elitism. Which I hear, in certain quarters, is frowned upon.

Americans are losing confidence in the court. Part of the reason is liberals don’t approve of many of the court’s recent rulings, like on abortion. Meanwhile, conservatives have spent decades undermining confidence in the court by blaming “activist judges” for adverse rulings on subjects like, well, abortion.

But when justices of all ideological stripes can’t figure out that free plane rides, luxury accommodations, expensive meals and other perks don’t pass the smell test, then they’re out of touch with the very Americans whose rights are subject to their judgment.

What’s more, they’re not exercising the common sense they’re expected to possess.

The Alito disclosure is renewing calls for Congress to convene hearings and hold justices to account.

A better solution would be for justices to voluntarily step away from their rich benefactors and the privileges that come with power and do what many everyday Americans do when they’re offered a freebie: Apply the smell test and question whether they’re being played. They also might ask how this looks to the average American. Then they should politely decline.

Along the Mississippi is a proud member of the Iowa Writers Collaborative. Please check out the work of my colleagues and consider subscribing to their work.

Laura Belin, Iowa Politics with Laura Belin, Windsor Heights

Doug Burns: The Iowa Mercury, Carroll

Dave Busiek: Dave Busiek on Media, Des Moines

Stephanie Copley: It Was Never a Dress, Johnston

Art Cullen, Art Cullen’s Notebook, Storm Lake

Suzanna de Baca: Dispatches from the Heartland, Huxley

Debra Engle: A Whole New World, Madison County

Julie Gammack: Julie Gammack’s Iowa Potluck, Des Moines and Okoboji

Jody Gifford: Benign Inspiration, West Des Moines

Nik Heftman, The Seven Times, Los Angeles and Iowa

Beth Hoffman: In the Dirt, Lovilla

Dana James: New Black Iowa, Des Moines

Fern Kupfer and Joe Geha: Fern and Joe, Ames

Robert Leonard: Deep Midwest: Politics and Culture, Bussey

LettersfromIowans, Iowa

Tar Macias, Hola Iowa, Iowa

Darcy Maulsby: Keepin’ It Rural, Lake City

Kurt Meyer, Showing Up

Wini Moranville, Wini’s Food Stories, Des Moines

Pat Kinney, View from Cedar Valley, Waterloo

Kyle Munson: Kyle’s Main Street, Iowa

Jane Nguyen, The Asian Iowan, West Des Moines

John Naughton, My Life, in Color, Des Moines

Chuck Offenburger: Iowa Boy Chuck Offenburger, Jefferson and Des Moines

Barry Piatt: Behind the Curtain, Washington, D.C.

Dave Price: Dave Price’s Perspective, Urbandale 

Macey Spensley: The Midwest Creative

Larry Stone, Listening to the Land, Elkader

Mary Swander: Mary Swander’s Buggy Land, Kalona

Mary Swander: Mary Swander’s Emerging Voices

Cheryl Tevis, Unfinished Business, Boone County

Ed Tibbetts: Along the Mississippi, Davenport

Teresa Zilk: Talking Good, Des Moines

Also, please check out our alliance partner, Iowa Capital Dispatch. It provides hard-hitting news along with selected commentary by members of the Iowa Writers Collaborative.