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Dozens of Previously Unreported SCOTUS Trips in New Marshals Documents — But Justice Thomas and the Chief Justice Are Nowhere to be Found

Ditching deputy marshals at the gates of Bohemian Grove. An extravagant birthday party at Lincoln Center. Religious services at a Brooklyn theater. Annual vacations to Colorado. Dialing in to oral argument from Florida. “Business meetings.” A meeting with a congressman.

These are a few of the justices’ more than 200 previously unreported activities that appear in the 4,042 pages Fix the Court has received from the U.S. Marshals Service in response to a FOIA requesting all the reports generated from USMS-covered SCOTUS travel from Jan. 1, 2018 to Sept. 30, 2022.

And yet, not one of the public or private engagements, vacations or layovers described in the documents was a Justice Thomas event. None were Chief Justice Roberts events either.

According to an email received by FTC FOIA attorney David Sobel on Monday from AUSA Thomas Duffey, “The USMS has no USM 535 – Request for Special Assignment Resources,” — that’s the name of the report filled out and filed when deputy marshals provide security for a justice — “for Justice Thomas for the time period requested.”

What’s more, Duffey added, “The USMS does not provide a protective posture for Chief Justice Roberts’ travel.”

It is unclear if the two justices’ security details are being wholly provided by the exempt-from-FOIA Supreme Court Police, as typically SCPD hands that responsibility to USMS when a justice leaves the D.C. area (see 2018 policy document, pp. 1-2); if they’re employing private security; or if there’s some combination thereof. Justices’ international security is thought to be covered by the State Department, and FTC also FOIAed for that information a year ago today, with documents expected in the coming weeks.

Though Roberts and Thomas, of course, have the need for high-level security, one could argue that it’s no greater than the needs of Justices Sotomayor and Kavanaugh, both of whom had credible threats against their lives in the last few years. It seems strange there would be different security protocols among a group of constitutional equals.

“The two justices whose comings and goings are probably of the most interest to the general public appear to be shielding some of that travel by solely availing themselves of security resources not subject to open records requests,” FTC’s Gabe Roth said. “Maybe there’s an innocuous explanation for this. But given the opacity we’ve seen from the Court, especially when it comes to travel, maybe there’s not.”

The most recent USMS-covered Thomas trip appears to be one to Yale Law in Feb. 2017 (p. 291 and p. 218); a similar one the year prior via private plane (p. 200) sparked ProPublica’s investigation on the justice’s lavish lifestyle. FTC cannot locate any USMS-covered Roberts trips in these documents or in ones FTC received in years past that covered summer 2015, FY16 and FY17, though Roberts’ name and erroneous title (“Chief Justice of the Supreme Court of America”) appear in a June 2018 Justice Ginsburg report for an event they co-headlined, p. 264.

Leak looms large

The leak of a draft opinion in Dobbs v. Jackson looms large in the documents FTC received. As was written in the Nov. 2023 joint status report — recall that FTC only received these documents thanks to lawsuit it filed, “As of May 2022,” i.e., the month of the leak, “the USMS no longer generates and maintains Form USM 535 – Request for Special Assignment Resources.” Nevertheless, there were eight Form 535s from May 2022 onward that were produced and sent to FTC, all for coverage of SCOTUS retirees Kennedy and Breyer.

One of them — generated for the first USMS-covered justice event post-leak, a May 15 Breyer book talk at Harvard Law — directly acknowledges the incident (p. 234): “The Supreme Court Police Department has requested the USMS to provide protection for SCJ Breyer in light of recent court document release related to the courts.” Another noted that during Breyer’s return trip from Chicago on Aug. 7, 2022 (p. 265), he “proceed[ed] to Signature Airport” (should be “Signature Aviation site”). That could mean a possible private jet flight (Signature sometimes services smaller planes) or a way to circumvent crowded Chicago passenger terminals (both O’Hare and Midway have Signature operations). Both options imply new post-leak security protocols.

What Form 535 was replaced with is unclear, and USMS has told FTC that there may be up to 114 pages of justices’ travel records from June to Sept. 2022 that appear in the new forms, which as of today the USMS is still reviewing.

The rough numbers

From SCOTUSMap, press reports, our research and USMS documents, the justices appear to have taken part in 644 activities during the nearly five years covered by the FOIA. That’s most definitely an undercount given the lack of USMS coverage for two of them — one of whom travels to Maine each summer and the other we’re certain took several up-until-recently-unreported trips. Plus several “activities” on our list are sometimes covered by the same USMS report and a single line on our list, so a Kennedy trip in which “public events at and near Lincoln Center are on the schedule” only counts as one “activity” toward the 644. And some of the 644 were events in which multiple justices participated.

Caveats out of the way, a total of 351 justice activities had coverage from deputy marshals; another 132 were in the D.C. area; and another 28 were international activities, where FTC believes the State Department provides coverage. Another 15 took place after USMS changed their coverage report post-leak, and we hope to learn about those soon.

That means 118 of the justices’ documented activities within the continental U.S. that would be eligible for marshals coverage (644-351-132-28-15) did not have a marshal on hand. Another 29 of the 118 were Roberts (8) or Thomas (21) events outside of D.C.

In the end, the likelihood that the justices attended 89 events in a 4.5-year period without security is slim. What’s more likely given the ongoing threats the justices face — readers of the 535s will note large blacked out sections under field no. 6, “reported threats” — is that the Supreme Court Police provided security or at least coordinated security with another agency for the justices, though it’s likely we’ll never know.

Of the 351 events with deputy marshals present, 216 were new to us. Of those, 142 we labeled “lvpre” for “likely vacation and/or private events”; 52 were “ah” or “airport handoffs,” where a deputy helped a justice, usually Breyer through an airport (whether any deputies also accompanied the justices on the flights is unknown, as all flight details were redacted); and 33 were “pev,” meaning public events that SCOTUSMap or FTC had missed over the years. Eleven were both “lvpre” and “pev,” i.e., when, say, Ginsburg or Sotomayor gave a talk somewhere like New York or Puerto Rico but also had several private events during their trip.

“There remain a ton of justices’ activities that the public does not know about or only learns about years after the fact. What are they trying to hide?” FTC’s Roth said. “Some of them, like vacations or visiting family — have fun. But when a justice is holding, per the marshals, an ‘official event’ or has seven consecutive protected nights of private ‘dinner events,’ it’s understandable that the public would want more information.”

The data in the documents:

A significant portion of the trips found in the FOIA documents comprise the justices speaking at judicial conferences, spending time in their out-of-D.C. residences, taking family vacations or taking trips to visit their siblings, children or grandchildren. But many are worth further review.

Chief among them is Justice Kennedy’s July 2018 trip to Bohemian Grove, the all-male California muckety-muck retreat. The documents indicate that Kennedy was dropped off by deputy marshals on July 19 and picked up on July 22, p. 376, meaning either his detail was not permitted to attend or Kennedy declined protection inside. According to reports, this is not the first instance Kennedy spent time there, and one of his sons is a member. Either way, and despite the Grove’s own security apparatus, ditching the deputies’ protection appears injudicious.

It’s Justice Sotomayor, though, whose name appears most often in the USMS documents, as the years of FTC’s request coincided with a book tour that took her to a dozen states and several foreign countries. Even if a Sotomayor trip appears as a single line on FTC’s “list of trips,” almost everywhere she went she had several events, both public and private, with students of all ages and dignitaries (almost always redacted, save one Canadian consul-general).

Sotomayor’s trips were also the costliest to taxpayers, though understandably so given the length, often a week or weeks-long, and seeing as how the most frequent destinations — New York, south Florida and Puerto Rico — are not cheap. Her events were typically scheduled morning to night, a fact that yielded the only somewhat snarky comment FTC found in the documents (p. 97): “[overtime for Miami book tour events] requested based on several previous flight delays experiences with Sotomayor.” (Another possibly snarky comment from a Sotomayor trip report: USMS writing about an event at the New York Botanical Gardens, “The detail will have to traverse through one of NYC’s high crime area (sic),” p. 56.)

A two-week New York jaunt by Justice Sotomayor in early 2020 appears to be the costliest at $76,276 (p. 118). The only other trip to top out over $70,000 was a Justice Barrett two-week stay in South Bend in Nov. 2020 that included Thanksgiving and for which $72,134 was approved, p. 485.

For the Sotomayor 2020 trip, the documents indicate she had deputy marshals with her at all of her public appearances and private events. Activities included a Feb. 4 “evening birthday celebration” at Lincoln Center (honoree unknown) with “expected attendance of several hundred people” (p. 106); a portrait unveiling at the Yale Club; and talks to the Latino Judges Association, Cardozo Law, a midtown Manhattan middle school and two after-school programs. Also on the itinerary was a Feb. 10 “meeting with Congressman” (p. 109) though it’s unclear who and what the topic was. (Neither the Mar. 2020 Justice Kavanaugh event nor the Sept. 2021 Justice Barrett event with Sen. Mitch McConnell produced a USMS coverage report.)

From a cursory review of the Secret Service’s annual budget, $76,276 appears to pale in comparison to what it would cost that agency to protect the President or his close family members over a similar period. So no quarrels there. But it’s worth looking at another cost concern: that out-of-district security personnel appear throughout the 4,000 pages, and it’s unclear the extent to which it’s justified, as there are U.S. Marshals are based in each of the federal judiciary’s 94 districts.

It might make sense for deputy marshals from Texas and New Mexico to accompany Justice Sotomayor to Puerto Rico as they did in Aug. 2022 (p. 181), if, say, Spanish proficiency was seen as mission-critical. Yet flying in deputy marshals from two California districts (p. 311) for a weeklong Sotomayor stay in New York in Sept. 2021 appears dubious.

Justice Sotomayor’s health concerns are also apparent throughout the documents. On a Feb. 2018 trip to south Florida with no public events, Sotomayor appears to have a medic from Grand Junction, Colo. accompanying her, and another is with her during an Oct. 2018 swing through Chicago and Nashville for book events. Four of Sotomayor’s 2021 trips mention “medical gear” or “medical supplies.” What’s more, some version of the phrase, “PPE will be utilized for the duration of this mission,” appears to have been written on a dozen of her 2021 USMS travel reports, including one where deputies are directed: “Wear masks regardless of vaccination status,” p. 281.

Per the documents she appears to have done what many Americans who could afford to did during the pandemic: spend months in a warm place working remotely, as the reports indicate she spent the last six weeks of 2020 and first six weeks of 2021 in south Florida, including for the Court’s Dec. 2020 and Jan. 2021 sittings.

Other items of interest:

—    Justice Kennedy: Among the stranger trip descriptors in the documents are two 2018 Justice Kennedy trips to California, one pre-retirement and one post-, where he’s described as conducting “business meetings” (pp. 267 and 352 here)

—    Justice Ginsburg: Her love of the stage is found throughout, but there’s no information in the documents on whether her tickets to, for example, “My Fair Lady” at Lincoln Center (2018), “The Italian Girl in Algiers” and possibly other shows at the Santa Fe Opera (2018) and either “Così fan tutte” or “Der Fliegende Holländer” Lincoln Center (both played on Mar. 9, 2020) were comped or not, though if they were, they might have fallen under the then-$390 (2018) or $415 (2020) gift-reporting threshold

—    Justice Alito: Though there’s video of the Oct. 6, 2018, Magnificat Day of Thanksgiving at Brooklyn’s Kings Theatre, he does not appear to be in it. (The history of “Magnificat” won’t be described in detail here, but it’s essentially a prayer that became the name of a Catholic magazine that has of late hosted massive prayer events throughout the country)

—    Justice Gorsuch: Sold his primary residence and co-owned vacation home in Colorado in 2017, but still took half a dozen trips to the state, most of which were over Christmas and New Year’s. One was for an “official event” on Jan. 28, 2019, the details of which were cut off due to USMS subbing out their regular report with what’s effectively a screenshot that’s in need of scrolling, p. 495

Breakdown by year:
227 total activities, 57 new to us
132 activities with USMS coverage, 15 of them “handoffs”
95 had no USMS coverage: 55 outside D.C., 40 in D.C.; 14 of the 55 international

217 total activities, 76 new to us
132 activities with USMS coverage, 18 of them “handoffs”
85 had no USMS coverage: 44 outside D.C. area, 41 in D.C.; 8 of the 44 international

54 total activities, 22 new to us
24 activities with USMS coverage, 4 of them “handoffs”
30 had no USMS coverage: 11 outside D.C. area, 19 in D.C.; 0 of the 11 international

73 total activities, 42 new to us
44 activities with USMS coverage, 11 of them “handoffs”
29 had no USMS coverage: 17 outside D.C. area, 12 in D.C.; 1 of the 17 international

73 total activities, 16 new to us
19 activities with USMS coverage, 4 of them “handoffs”
54 had no USMS coverage: 34 outside D.C. area, 20 in D.C.; 5 of the 34 international

Breakdown by justice (do not add up to 644 since some were attended by multiple justices):
Souter, 3 activities from Jan. 1, 2018, to Sept. 30, 2022
Kennedy, 60
Thomas, 28
Ginsburg, 88
Breyer, 128
Roberts, 18
Alito, 30
Sotomayor, 167
Kagan, 45
Gorsuch, 64
Kavanaugh, 11
Barrett, 9
Jackson, 4

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