If there were any justice a criminal defense lawyer wouldn’t mind being smacked, fairly or not, it’s Sam Alito. As previously noted, the worst words at the start of a Supreme Court opinion are  “JUSTICE ALITO delivered the opinion of the Court.” No words assure that what follows will be bad. And yet, even the dreaded Justice Alito should have the opportunity to defend himself. Whether his argument prevails is another matter, left to the discretion of the reader. So was his Wall Street Journal op-ed designed to pre-empt the coming accusations of ProPublica wrong?

Josh Blackman comes to the defense of Alito’s op-ed.

Why did Justice Alito take this unorthodox step to preempt the scoop? Because ProPublica has proven itself unreliable. The outlet could not be trusted to accurately provide Alito’s rejoinder in context. And Alito’s concerns proved prudent.

Unreliable is a curious phrase in that there seems to be a sense, particularly in legal academia, that the failure to frame a point in the way that leads the reader inexorably to the conclusion the writer or publication wants renders it unreliable. There’s a difference between an unaccommodating framing and inaccuracy. Was ProPublica’s story unfriendly or inaccurate?

Consider two examples. ProPublica wrote that “Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts.” But ProPublica does not even acknowledge the 2023 rule revision. Indeed, the fact that the rule was changed reflects the prior uncertainty. ProPublica could fully inform readers about the relevant rule change. But it chose not to.

This is a good point, that the omission of the 2023 rule revision leaves the reader unable to appreciate that Alito’s failure to list the flight and trip, while wrong today, wasn’t necessarily wrong at the time it occurred. Inaccuracy can occur by omission as well as commission, and a fair reporting should have acknowledged that the revision came long afterward.

Second, ProPublica charged that Alito should have recused from Republic of Argentina v. NML Capital (2014). ProPublica reported that NML Capital was affiliated with billionaire Paul Singer, on whose private jet Alito flew to Alaska. ProPublica included a single explanatory sentence from Alito’s Wall Street Journal op-ed to explain his failure to recuse: “It was and is my judgment that these facts would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially.” But that generic line barely scratches the surface of what Alito wrote. Alito explained that “Singer was not listed as a party” in the briefs, and his name did not “appear in any of the corporate disclosure statements.” Alito observed that it “would be utterly impossible . . . to search filings with the SEC or other government bodies to find the names of all individuals with a financial interest in every such entity.”

This is a harder argument to buy. On the one hand, it seems unlikely that the trip influenced Alito or the outcome given that he was part of a 7-2 majority. No need to buy the cow when you can get the milk for free, you know. Billionaire bud Paul Singer didn’t have to give Alito anything and he still would have had his vote. And Sam can say with utmost sincerity that his Alaska fishing trip changed nothing.

But Alito didn’t know that NML Capital was Singer’s? No sale. Alito may be wrong about pretty much everything, but he’s no dope. But even if he lacked specific knowledge, Alito certainly knew that this really rich guy, out of the blue, wanted to hang out with him and give him a free ride on his plane and take him fishing. Was it because Alito was such a fascinating conversationalist, danced well, told funny jokes? If Alito believed it was cool to take what his newfound friend was giving, the least he could have done was a little diligence into what his new buddy owned and where he made those billions. Because, you know, Alito is also one of the Nine and billionaires didn’t suddenly want to hang with him because he was such a hip dresser.

And then there’s the “vacant seat” argument.

As far as he was aware, he wrote, the seat he occupied on his private-jet jaunt to Alaska “would have otherwise been vacant” — by which he presumably means to say the gift was valueless. Remind me to try that one out the next time I walk past an empty first-class seat on a Delta flight.

Jesse Wegman draws only half an inference here. Was Alito’s point that the seat was valueless or that there was no cost to Singer by letting Alito fill it? Alito needed to get to Alaska and, by some weird coincidence, there was an open seat on Singer’s plane. Why waste it?

But again, it’s not as if Sam the Sham was unfamiliar with the concept that airplane trips cost money and are paid for one way or another. No, that didn’t make Alito liable for the full cost of the private jet flight, but yes, that argument emits a disingenuous odor. While the actual value of the flight is subject to debate, that it had value and Alito got to enjoy it can’t be denied.

Was it wrong for Alito to bypass the usual Supreme Court spokeswoman and lay his cards on the friendly table of the Wall Street Journal? No, not at all. His integrity was being challenged and he had every right to defend himself, for his own sake if not for the sake of his life tenure. He doesn’t need the spokeswoman’s permission, and why would he turn to an unfriendly media outlet to get his op-ed out there?

But what was, and remains, wrong is that Supreme Court justices, and not just Alito and Thomas, but pretty much all of them, need to be above reproach if they want their singularly insulated decisions to be accepted by the public as honestly derived, even if unpopular. When they’re suddenly befriended by billionaires bearing gifts, can they not appreciate the stench of that hospitality? It’s not too much to ask of Supreme Court justices to not take stuff from random rich guys. And Singer did not become Alito’s pal because Sam is such a great guy to hang around with. Sure, Alito is allowed to defend himself in an op-ed in the WSJ, but that doesn’t mean he still wasn’t wrong.