Chief Justice John Roberts prepares to speak at the University of Kentucky College of Law's judicial conference and speaker series in Lexington, Ky, on Feb. 1, 2017. Timothy D. Easley/AP hide caption
A recently compiled report shows that Supreme Court justices get neither big bucks nor valuable gifts when they speak at public universities. But public and press access granted by the justices is idiosyncratic.
Two justices---Neil Gorsuch and Samuel Alito--have limited access to their appearances, even on occasion forbidding recording of their speeches for archival purposes.
The report by the non-partisan organization Fix The Court praised all the justices for going out of their way to speak at state universities, and not just the elite private schools that they and their law clerks have attended. The report found that roughly one-third of all the colleges and universities visited by the justices were public institutions.
FTC found some slip-ups on disclosure of reimbursed travel expenses--none of them major--by Justices Sonia Sotomayor and Clarence Thomas. When FTC pointed out the omissions, both justices said, through the court press office, that they would amend their disclosure forms.
For the most part, the travel and lodging expenses are routine. The justices travel commercial. Occasionally, a university owns a private plane that it sends to transport a justice to a place that is not easily accessible from Washington, D.C. But these flights are rare. Justice Alito even declined one such offer.
Most of the justices allowed either live streaming or briefly delayed online posting of their remarks on campuses. But two justices did not. Justice Gorsuch in 2017 refused to allow his remarks at the University of Louisville to be broadcast in any form. The refusal drew complaints from university staff members who noted that Chief Justice John Roberts, Justice Thomas, and Sen. Mitch McConnell, the Senate majority leader, did not limit media access in the same way when they spoke at the school, according to the report.
Gorsuch also limited access for an appearance at the University of Kentucky. Although he was invited by the Heyburn Initiative, which bills itself as the nation's only center devoted to the preservation of the federal judicial history, a university archivist was barred from recording Gorsuch's talk to preserve it for posterity. A tweet of the talk was ultimately posted.
Justice Alito also barred any broadcast of his talk at the University of South Carolina School of Law in 2017. All audio and video taping was forbidden for broadcast purposes. "Alito even went so far as to request that the university not live tweet during his remarks," according to the report.
Chief Justice Roberts took "a different, though well-worn tack" when he gave the Stein Lecture at the University of Minnesota Law School, FTC reported. Roberts allowed his talk to be videotaped and made available online following the event. Sotomayor followed the same course when she delivered the Stein Lecture in 2016, as did Justice Elena Kagan in 2019.
Kagan's speech at the University of Wisconsin, Sotomayor's speech at the University of Rhode Island, and Justice Ruth Bader Ginsburg's talk at Montclair State University were all live streamed.
Justice Stephen Breyer allowed his talk at the City University of New York to be videotaped and posted online afterward, and Sotomayor allowed a similar videotaping at CUNY to be posted online afterward "consistent with [the school's] usual practice," according to the FTC report.
While the justices "are under no obligation to travel the country and speak to the public, they all do," the report observes. At the same time, the extent to which these public events have become "highly choreographed, often restrictive events in terms of content comes as a little bit of a surprise," said FTC President Gabe Roth.
Perhaps. But justices often want it made clear ahead of time that there are certain subjects that are out of bounds. The chambers of Justice Sotomayor, for instance, sent this message to the City University of New York staff in 2016, leaving nothing to chance:
"Please made certain your students know that the Justice appreciates that audiences would like her to comment on current issues...however, she believes that the public will lose confidence in the judiciary if Justices opine on cases or issues." The missive went on to say that the justice "does not answer questions on issues that may come before the court, pending cases, statutes or proposed legislation," nor does she "express her views on the conduct and opinions of others...lastly, the Justice will not explain or define her 'opinions' in any way."
The schools themselves sometimes seem oddly eager to restrict questions. UCLA School of Law staff members "preemptively offered" to submit questions to Justice Kagan in advance of her appearance, an offer Kagan accepted, asking that 11 of the 40 questions submitted be withheld from the event. Among them was a question about "whether Gorsuch's arrival had changed anything about the court's dynamics," a question about how she selects her law clerks, and a question about her experience not being confirmed in 1999 for a seat on the U.S. Court of Appeals for the District of Columbia. (Republicans blocked consideration of her nomination, as they did many other Clinton judicial nominations prior to the 2000 presidential election.)
Fix the Court does have an agenda. It has for some years campaigned for a federal law that would mandate TV broadcast of Supreme Court arguments, and it has sought more transparency about Supreme Court justices' finances.
It has also promoted the idea of a formal code of ethics for the high court, as opposed to the code of conduct that exists for the lower courts, a code that Supreme Court justices voluntarily comply with for the most part.
Still, as FTC president Roth observed, "it is well known" that Supreme Court justices face "significantly fewer" public disclosure requirements than officials in the executive and legislative branches of the federal government. That is something FTC would like to change.
So the organization embarked on something of an end-run, compiling as best it could a list of public universities visited by the justices over the last few years. It then filed public-records requests of those schools under state law, seeking information about about travel expenses, security costs, email exchanged with Supreme Court staff, etc.
Most of the requests for information were filed in the fall of 2019. By March of 2020, FTC says, it had received 3,793 pages of documents from 13 public colleges and universities. involving all the justices, except for Kavanaugh, who joined the court in late 2018.
The report shows that justices routinely admonish schools that they are forbidden from participating in any sort of fundraising. The schools, nonetheless, sometimes fill out guest lists at these events with "high profile and high net net worth" individuals, essentially cultivating them for future donations. Hardly surprising, given that most state schools no longer can depend on state funds for survival and must turn to private donations for most of their budgets.
There were a few interesting nuggets in the material provided by state schools. One document provided by the University of Minnesota showed that the chief justice has some distinct food allergies. FTC voluntarily declined to disclose those, and indeed, asked the university to resubmit the email with the information blacked out.
The University of Kansas School of Law and the University of Buffalo School of law claimed there were no documents responsive to FTC's document request. And the University of Alaska at Fairbanks and University of Hawaii have failed to respond, other than to say that they have received the document requests.
Most schools charged nominal fees for the document search. But Michigan State and the University of Colorado asked for $600 and $460, respectively, to comply with the document request--too rich for FTC's blood. If those "astronomical" fees "were meant to deter us from obtaining supposedly public information, guess what: it worked,"said FTC's Roth.
Faced with the dilemma, FTC sought to narrow their request, asking Colorado, for instance, for the names of individuals who had sent the most emails back and forth to the Supreme Court in the lead-up to the event there.
The name at the top of the list was Lise Menn, CU professor emeritus of linguistics. Menn wrote a book on grief in 2014 that included essays on how to cope when a spouse dies. Justice Ginsburg wrote the foreword to the book. Her husband, Marty Ginsburg, died in 2010, and apparently Ginsburg and Menn have stayed in touch.
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