February 17, 2016 at 7:45 PM
Justice Antonin Scalia’s sudden death over the weekend at a West Texas ranch raised questions about the nature of his travel, who paid for the trip and whether justices are subject to the same disclosure guidelines as other judges or federal officials.
Where did Justice Scalia die?
Scalia was at the Cibolo Creek Ranch, a resort tucked away in the Big Bend region of Texas about 30 miles from the border with Mexico.
The ranch is 30,000-acre getaway that is home to John B. Poindexter, according to the website of J.B. Poindexter & Co. It is a remote location that has reportedly attracted the likes of Mick Jagger, Jerry Hall and Bruce Willis. When Tommy Lee Jones directed a movie more than a decade ago, he filmed several scenes at the ranch, according to the Houston Chronicle.
Who paid for his trip?
All of which raises the question: Who pays for a Supreme Court justice to make this kind of trip?
Not Scalia, it turns out. Poindexter told The Washington Post that Scalia was not charged for his stay, something he described as a policy for all guests at the ranch.
“I did not pay for the Justice’s trip to Cibolo Creek Ranch,” Poindexter wrote in a brief email Tuesday. “He was an invited guest, along with a friend, just like 35 others.”
Poindexter added: “The Justice was treated no differently by me, as no one was charged for activities, room and board, beverages, etc. That is a 22-year policy.’’
However, Poindexter said he did not pay for Scalia’s charter flight to Texas.
A person familiar with the ranch’s operations said Poindexter hosts such events two or three times a year.
Poindexter, who would not identify Scalia’s friend, is a Texas native and decorated Vietnam veteran who owns Houston-based J.B. Poindexter & Co., a manufacturing firm.
The company has seven subsidiaries, with combined annual revenue of nearly $1 billion, according to information on its website. Among the items it manufacturers are delivery vans for UPS and FedEx and machine components for limousines and hearses. The company has 5,000 employees, the site said.
One of Poindexter’s companies was involved in a case that made it to the high court. Last year, the Supreme Court declined to hear a case involving an age discrimination lawsuit filed against one of these companies, court records show.
The nature of Poindexter’s relationship with Scalia remained unclear Tuesday, one of several lingering questions about his visit. It was not known whether Scalia had paid for his own ticket to fly to the ranch or if someone else picked up the tab, just as it was not immediately clear if Scalia had visited before.
It is also still not known who else was at the Texas ranch for the weekend, and unless that is revealed, there could be concerns about who could have tried to raise an issue around Scalia, said Stephen Gillers, who teaches legal and judicial ethics at the New York University School of Law. He compared it to unease that arises when judges and officials from major companies are invited to seminars or educational events that bring them together for periods of time.
“People worry at those kinds of things; there’s a creation of access on the part of people with an interest in the courts, and that is unfair,” Gillers said Tuesday.
How do justices disclose their gifts and investments?
Much the same way other federal judges do: by filing reports outlining their outside income, gifts and times they are reimbursed for things.
The 1978 Ethics in Government Act, passed in the wake of the Watergate scandal, states that all federal judges — up to and including the chief justice and the associate justices — are required to report certain gifts. It also requires them to identify and describe when someone who is not a relative gives them “transportation, lodging, food, or entertainment” worth a certain amount.
A review of Scalia’s recent financial disclosure reports posted online by OpenSecrets.org shows that, like his colleagues, he regularly filed for unspecified reimbursements from universities, legal societies and other organizations like the conservative group the Federalist Society after making trips for lectures and speeches. Scalia was among the court’s most active travelers. However, these disclosure forms offer scant details about who else attends events with the justices.
Judges must report reimbursements related to travel totaling $335 or more, according to filing instructions posted by the group Judicial Watch. And judges are not allowed to accept anything of value from a person who has a case in their court, the document notes.
These instructions include an exemption for “food, lodging or entertainment received as a personal hospitality,” which includes a stay at a property owned by a person. As a result, it is unclear if Scalia’s stay would have ultimately been reported, said Gillers. (Travel, however, is not exempt.)
Chief Justice John G. Roberts Jr. devoted part of his 2011 report on the state of the federal judiciary to the topic of disclosures. He also made sure to note that it was not entirely clear, in the court’s eyes, whether Congress could even extend such disclosure requirements to the justices.
“The Court has never addressed whether Congress may impose those requirements on the Supreme Court,” he wrote. “The Justices nevertheless comply with those provisions.”
Are there other ethical questions regarding justices?
The biggest ethical questions involve when justices should recuse themselves from cases, says Gillers.
“Is [the justice] the final arbiter of whether or not he has to recuse himself? And the answer is yes,” he said. “Every other federal judge below the Supreme Court, every other federal judge’s decision about whether or not he should be recused is potentially subject to the review of a higher judge or other judges on his court. But no one reviews the decision of a justice.”
He pointed to perhaps the most famous case involving a justice and recusal, which involved Scalia himself. Scalia joined then-Vice President Richard B. Cheney on a hunting trip while Cheney was the subject of a lawsuit over his energy task force, and in response to calls that he sit out the case, Scalia issued a highly unusual 21-page argument explaining why he refused to do so.
There are also calls for recusal stemming from things justices did before they joined the bench. Justice Elena Kagan, who served as the Obama administration’s solicitor general before her appointment, dismissed suggestions to recuse herself from decisions on health-care reform. Kagan had said that while in the administration she was not involved in preparations for legal challenges the act would face.
For his part, Roberts has defended the court’s policy allowing justices to decide for themselves if they should step away from certain cases, defending the court’s members as capable of making this decision themselves.
In his 2011 report, Roberts noted that while lower courts can substitute for one another, there is only one U.S. Supreme Court, “and if a Justice withdraws from a case, the Court must sit without its full membership.” The justices have “an obligation to the Court” before making the decision on recusal, he wrote.
Roberts issued his report at the end of a year in which more than 100 law professors nationwide asked Congress to give the Supreme Court an ethical code of conduct after it emerged that Scalia and Justice Clarence Thomas had attended private political meetings sponsored by billionaire conservative donors David and Charles Koch. That same year, Kagan was called on to recuse herself from hearing challenges to health-care reform, and a watchdog group said Thomas had failed to report his wife’s income from a conservative think tank before he amended his financial forms.
While Roberts did not specifically mention those issues, he said it would not be wise for justices to review the recusal decisions made by their peers. He said that “it would create an undesirable situation” enabling justices to play a role in determining which others get to weigh in on cases.
“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” he wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”
Alice Crites contributed to this report.
Related: The death of Antonin Scalia: Chaos, confusion and conflicting reports
This story, first published at 7 a.m., has been updated.