While much of liberal ire with some of the decisions of the US Supreme.Court has focused on justice Clarence Thomas’s opinions, I have long felt that justice Samuel Alito is the most reactionary member of the court, the one most likely to offer tortured reasoning to justify what seems like pre-ordained conclusions based on his extremely conservative ideology.
Both Thomas and Alito have been the targets of investigative reports by ProPublica about the gifts and lavish vacations that they have been given, including travel on private jets, by wealthy individuals who, directly or indirectly, have had cases before the court. They did not disclose these trips and the private jet travel in their financial disclosure forms.
In the case of Alito, though, he went one step further than Thomas. As is customary with good journalistic outfits, prior to publishing their story, ProPublica informed Alito that they were preparing a story and sent him a list of questions to make sure they were being fair and accurate. What was unusual was that Alito used that to publish a ‘prebuttal’ in the opinion pages of the Wall Street Journal the day before the ProPublica piece even appeared.
ProPublica explains what happened.
Around midday on Friday, June 16, ProPublica reporters Justin Elliott and Josh Kaplan sent an email to Patricia McCabe, the Supreme Court’s spokesperson, with questions for Justice Samuel Alito about a forthcoming story on his fishing trip to Alaska with a hedge fund billionaire.
We set a deadline of the following Tuesday at noon for a response.
Fifteen minutes later, McCabe called the reporters. It was an unusual moment in our dealings with the high court’s press office, the first time any of its public information officers had spoken directly with the ProPublica journalists in the many months we have spent looking into the justices’ ethics and conduct. When we sent detailed questions to the court for our stories on Justice Clarence Thomas, McCabe responded with an email that said they had been passed on to the justice. There was no further word from her before those stories appeared, not even a statement that Thomas would have no comment.
The conversation about Alito was brisk and professional. McCabe said she had noticed a formatting issue with an email, and the reporters agreed to resend the 18 questions in a Word document. Kaplan and Elliott told McCabe they understood that this was a busy time at the court and that they were willing to extend the deadline if Alito needed more time.
Monday was a federal holiday, Juneteenth. On Tuesday, McCabe called the reporters to tell them Alito would not respond to our requests for comment but said we should not write that he declined to comment. (In the story, we wrote that she told us he “would not be commenting.”)
She asked when the story was likely to be published. Certainly not today, the reporters replied. Perhaps as soon as Wednesday.
Six hours later, The Wall Street Journal editorial page posted an essay by Alito in which he used our questions to guess at the points in our unpublished story and rebut them in advance. His piece, headlined “Justice Samuel Alito: ProPublica Misleads Readers,” was hard to follow for anyone outside ProPublica since it shot down allegations (notably the purported consumption of expensive wine) that had not yet been made.
This kind of behavior is extraordinary and does not reflect well on Alito or the editorial pages editors of the Wall Street Journal. In his article, Alito made all manner of assertions that ProPublica challenged. As they say:
It does not appear that the editors at the Journal made much of an effort to fact-check Alito’s assertions.
The Journal’s editorial page is entirely separate from its newsroom. Journalists were nonetheless sharply critical of the decision to help the subject of another news organization’s investigation “pre-but” the findings.
“This is a terrible look for @WSJ,” tweeted John Carreyrou, a former investigative reporter at the Journal whose award-winning articles on Theranos lead to the indictment and criminal conviction of its founder, Elizabeth Holmes. “Let’s see how it feels when another news organization front runs a sensitive story it’s working on with a preemptive comment from the story subject.”
Bill Grueskin, a former senior editor at the Journal and a professor of journalism at Columbia, told the Times that “Justice Alito could have issued this as a statement on the SCOTUS website. But the fact that he chose The Journal — and that the editorial page was willing to serve as his loyal factotum — says a great deal about the relationship between the two parties.”
Even Fox News got in the game. “Alito must be congratulating himself on his preemptive strike, but given that the nonprofit news agency sent him questions last week, was that really fair? And should the Journal, which has criticized ProPublica as a left-wing outfit, have played along with this? The paper included an editor’s note that ProPublica had sent the justice the questions, but did not mention that its story had not yet run,” the cable news outfit’s media watcher Howard Kurtz wrote.
There are lessons for ProPublica in this experience. Our reporters are likely to be a bit more skeptical when a spokesperson asks about the timing of a story’s publication.
ProPublica is not ‘left wing’ but is simply an investigative reporting outfit. It is not their fault that in the US, conservative views have drifted into far-right, fact-denying, fabulist territory that has resulted in the truth being perceived as left-liberal on the political spectrum.