Politics

Champagne flowed at a 2017 Aspen Institute event, held at a mansion on "Billionaire Mountain," where $10,000-year donors and their guests rubbed shoulders with some of the nation's most powerful judges.

The Aspen Institute promises "exclusive access to high-level gatherings" for donors in its Justice Circle, and the 2017 "speakers dinner" featuring Justice Elena Kagan was as exclusive as they get.

Roughly 50 attendees RSVP'd, according to two guest lists obtained by Insider. Corporate execs and lawyers with business before the Supreme Court mingled with some of the country's most influential jurists. While Kagan was a guest of honor, Brett Kavanaugh, at the time a judge on the DC Circuit Court of Appeals, was also present. The following year, President Trump nominated Kavanaugh to join Kagan on the nation's highest court.

The hospitality provided to the judges wasn't anywhere near the scale of the decadeslong relationship between Justice Clarence Thomas and the billionaire real-estate developer Harlan Crow. Kagan's visit to Aspen had a public component, and both she and Kavanaugh documented that the Aspen Institue provided free travel and lodging for the event on their annual disclosure forms.

What the guest lists do show is the economy of access and influence that has sprung up around the Supreme Court. Revelations about Thomas and Crow's relationship have prompted calls in Congress for the Supreme Court to adopt its first-ever binding code of ethics. Kagan's appearance as an apparent guest of honor could violate the Code of Conduct for federal judges, which bars judges from being a "speaker, a guest of honor, or featured on the program" of fundraising events. But as a Supreme Court justice, Kagan is not currently bound by those rules.

The Supreme Court bans justices from attending fundraising events, but it defines them to include only events that raise more money than they spend or where there is a specific solicitation for funds, Kathleen Clark, an expert in government ethics at Washington University in St. Louis, said.

"It may not violate those rules as the rules have been narrowly interpreted, but nonetheless, there still is a problem with it," Clark said. "How can you call this event anything but a reward for having given money to the organization? A bonus awarded to those who have already generously contributed?"

But more than a hypothetical ethics violation, what the guest list reveals is the perfectly legal way in which the power of the nation's highest court is marketed by third parties as a chance to pay for face-to-face access.

Everybody got something: Kagan and Kavanaugh got a free trip to a luxurious destination, Aspen got money from donors, and those donors got privileged access to Kagan and Kavanaugh — an intimate dinner setting where the two jurists, no longer ensconced by their chambers, clerks, and robes, were more approachable than they would be in any official setting.

The benefits of face time with a justice Kagan's admirers like to recall the time she turned down a proposed gift of lox and bagels from a group of her high-school friends as evidence of her stringent approach to ethics. But the evening at the Aspen Institute demonstrates a willingness to mingle with VIPs who were only there because they'd shelled out five figures.

Eleven of the 50 names listed as attendees at the dinner were guests of law firms. They included in-house lawyers for the coal giant Peabody Energy and the convenience-store chain Speedway, both guests of the law firm Shook, Hardy & Bacon. Tristan Duncan, the chair of the Aspen Institute's Justice Circle and a partner at Shook, who was also at the dinner, represented Peabody before the Supreme Court in 2016 and Speedway in 2018.

"Tristan Duncan may be supplying names for 2-3 additional guests," one of the lists said.

The Aspen Institute, Duncan, Peabody, and Speedway did not respond to requests for comment from Insider.

When contacted by Insider, some attendees said that they didn't remember much of the event, and that nothing inappropriate had happened. Christina Sullivan, who worked for a company that runs apartment complexes called Gables Residential, said that her interaction with Kagan was limited to a handshake and a greeting."shak[ing] her hand and say[ing] hello."

"People are all up in arms — the court, privilege, whatever — but I think you're barking up the wrong tree," said Brian O'Connor, a real-estate businessman whose mother, the former Supreme Court Justice Sandra Day O'Connor, was being honored at the Aspen event.

But hobnobbing with judges can give lawyers and litigants flashes of insight into their values and personalities with a candor and clarity unavailable to the general public.

Muslim Lakhani, a Washington businessman, told Insider that he chatted with Kagan about judges and "judicial activism" in his native Pakistan. At one point, he said, Kagan seemed to invoke a higher power.

"Once a judgment is made, after that, there's only one court. That's up there," Kagan said, according to Lakhani's recollection. Kagan, Lakhani continued, "keeps that front and center in her mind, something like 'I must pass laws that are correct, because I have to answer for the judgments that I give.'"

While Kagan has also spoken about her faith in public settings, it's hard to imagine a Supreme Court litigator who wouldn't jump at the chance to have an informal back-and-forth with her away from the cameras, as Lakhani did.

Kagan and Kavanaugh did not immediately respond to requests for comment made with the court's public-information officer.

The uneasy intersection of friendship and self-interest Hours before the Aspen dinner, Meryl Chertoff introduced Kagan before a public conversation. At that time, Chertoff, a law professor, headed the Aspen Institute's Justice and Society Program. In 2010, she spoke favorably about Kagan's nomination to the highest court. As the head of the Aspen Institute's Justice and Society Program at the time, which was hosting Kagan, she likely would have had a hand in shaping the VIP guest list for the dinner.

Michael Chertoff, a former appeals judge who was the secretary of Homeland Security under George W. Bush, accompanied his wife to that dinner. In 2018, the year after the Aspen dinner, Michael Chertoff's consulting company, Chertoff Group, started working directly with the Supreme Court. That relationship wasn't made public until this year. CNN reported that the Chertoff Group billed upward of $1 million, money that ultimately came from taxpayers.

In response to questions from Congress, Michael Chertoff explained that he'd advised the court on security and on a pandemic-response plan. When asked if he maintained "personal relationships" with any justices, Chertoff wrote that he did not have "ongoing or regular social relationships," though he said there had been "occasional social exchanges," "mostly at widely attended events."

It's unclear whether Michael Chertoff interacted with either justice at the dinner, or whether there is any connection between the event and his later work for the court, which was handled not by Kagan or Kavanaugh, but by Chief Justice John Roberts.

But the presence of so many wealthy and influential people who might want something from the court is itself a problem, Gabe Roth, who runs the advocacy group Fix the Court, said. Roth told Insider that the access economy can create the appearance of conflicts of interests, and said that judges should recuse themselves from cases involving firms or clients who pay large sums of money to meet with them.

"I get that Washington is a chummy town and more resources for Court security is likely warranted," Roth said in an email. "But by the same token, given the ties between Chertoff and the justices, the notoriously opaque institution should open up its books to reassure the public that Chertoff's work was above board."

Access to Supreme Court justices is used to reward donors While ProPublica's reporting on the undisclosed gifts and financial ties between Thomas and Crow has captured headlines, increasing attention is turning to other ways the rich and powerful gain access to Supreme Court justices.

The Aspen Institute isn't alone in dangling Supreme Court access to lure deep-pocketed donors. Reporting by The New York Times revealed that Rob Schenck used the Supreme Court Historical Society as a springboard to build relationships with conservative justices.

An Insider analysis of Historical Society donor and event records found that a suite of archconservative activists — including the anti-abortion philanthropist and Domino's founder Tom Monaghan, the former Trump attorney Jay Sekulow, and the QAnon proponent and election denier Sidney Powell — had used the society as a vehicle to gain face time with the justices.

The Associated Press exposed how officials at University of Colorado Law School pushed for a larger "donor-to-staff ratio" at a 2019 dinner with Kagan, and how Justice Sonia Sotomayor's taxpayer-funded staff prodded the schools hosting her to buy copies of her book.

All of these events entailed the same kind of exchange. Financial support for a public mission flowed one way, and scheduled private time with Supreme Court justices was dispensed in return.

"Obviously, the justices should have friends," Roth said. But if they started becoming friendly with a businessperson or lawyer after joining the Supreme Court, he said, that's more of a red flag.

"To me, it's almost like: Who are your new friends?" Roth said.