Supreme Court Justice Antonin Scalia needs to hire two people: a scheduler who reviews which cases are coming up and a travel agent who can plan his trips accordingly. Because at this point, his travel habits are making a biased jurist look even worse.
Scalia’s record came into question last month when the LA Times learned that Scalia and Dick Cheney went on a hunting trip together at a private camp in Louisiana, just a few weeks before Scalia and the rest of the high court were slated to hear a case in which Cheney is the defendant.
The Times then discovered that the two not only vacationed together but that Scalia (the judge) was an “official guest” of Cheney (the defendant) on a government jet. This painted an almost-comical picture of judicial impropriety: a powerful defendant, just weeks before his case is heard in court, invites an already-sympathetic judge to join him on his luxurious jet for a private vacation at a secluded retreat. The judge then insists there’s no reason to question his impartiality.
The same LAT reporters — Richard Serrano and David Savage — move the ball even further today with another report explaining that Scalia has apparently made a habit of trips with parties with cases before the high court.
Supreme Court Justice Antonin Scalia was the guest of a Kansas law school two years ago and went pheasant hunting on a trip arranged by the school’s dean, all within weeks of hearing two cases in which the dean was a lead attorney.
The cases involved issues of public policy important to Kansas officials. Accompanying Scalia on the November 2001 hunting trip were the Kansas governor and the recently retired state Senate president, who flew with Scalia to the hunting camp aboard a state plane.
Two weeks before the trip, University of Kansas School of Law Dean Stephen R. McAllister, along with the state’s attorney general, had appeared before the Supreme Court to defend a Kansas law to confine sex offenders after they complete their prison terms.
Two weeks after the trip, the dean was before the high court to lead the state’s defense of a Kansas prison program for treating sex criminals.
Not surprisingly, Scalia ruled in Kansas’ favor in both cases. The natural defense for Scalia is that he probably would have voted with Kansas in both instances anyway. That may be true. But why would Scalia create the appearance of impropriety?
There’s no proof that anyone used the hunting trip to lobby Scalia on the issue before the court. Nevertheless, justices have a responsibility to appear neutral. Scalia seems completely disinterested on maintaining even a modest façade of detached neutrality.
Specialists in legal ethics differed on whether the Kansas trip presented a conflict of interest for Scalia.
“When a case is on the docket before a judge, the coziness of meeting privately with a lawyer is questionable,” said Chicago lawyer Robert P. Cummins, who headed an Illinois board on judicial ethics. “It would seem the better part of judgment to avoid those situations.”
Added Monroe Freedman, who teaches legal ethics at Hofstra University: “A reasonable person might question this, and that’s the problem.” He said Scalia “should have rescheduled the trip until after” the cases were over.
Other experts noted, however, that no one who met Scalia in Kansas was a named litigant in the two cases, in contrast to the trip with Cheney, who is the appealing party in the upcoming energy task force case.
That’s true. I’ll concede that the Kansas trip is not as troubling as the Cheney trip. The prior deals with a judge socializing with a lawyer who will be arguing before the court; the latter with an actual named litigant whose case is before the court. The Cheney connection is certainly more disturbing.
But taken cumulatively, Scalia looks as if he has a problem maintaining the appearance of independence and his reputation is suffering as a result.