I think it’s safe to say the LA Times’ Richard Serrano and David Savage will not be on Supreme Court Justice Antonin Scalia’s Christmas card list.
Serrano and Savage were the ones who uncovered Scalia’s hunting trip with Dick Cheney just a few weeks before Scalia and the rest of the justices were slated to hear a case in which Cheney is the defendant. Then, the same duo reported that Scalia was a guest of a law school 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.
And in case they hadn’t enraged Scalia enough, Serrano and Savage reported on yet another potential controversy today.
As the Supreme Court was weighing a landmark gay rights case last year, Justice Antonin Scalia gave a keynote dinner speech in Philadelphia for an advocacy group waging a legal battle against gay rights.
Scalia addressed the $150-a-plate dinner hosted by the Urban Family Council two months after hearing oral arguments in a challenge to a Texas law that made gay sex a crime. A month after the dinner, he sharply dissented from the high court’s decision overturning the Texas law.
Some experts on legal ethics said they saw no problem in Scalia’s appearance before the group. But others say he should not have accepted the invitation because it calls into question his impartiality on an issue that looms increasingly large on the nation’s legal agenda.
This flap is obviously different from the first two, and frankly, not as troubling. The other two deal directly with Scalia’s relationships with litigants with business before the court — in one case an attorney who argued a case and in the other a defendant.
But this latest story does highlight Scalia’s ongoing problem with impartiality. Granted, the Urban Family Council was not a party to the gay rights case in question, though its views on the case were clear and it was sponsoring related suits in federal court.
But by blurring the line between detached judicial independence and advocate, Scalia continues to put his alleged neutrality into question.
Supreme Court justices often speak to legal groups, such as bar associations and law school audiences. Some also have spoken in recent years to legal groups with an ideological bent, such as the conservative Federalist Society or the liberal American Constitution Society.
Over the years, some justices also have written strongly worded opinions on such contentious issues as abortion, gay rights and the death penalty.
But generally, they avoid any connection with or appearances before partisan or activist groups that fight for those issues in court.
Several experts on legal ethics said Scalia should have turned down the speaking invitation.
“This would raise a concern in the minds of a lot of people. And I would say it is not the right way to act as a judge,” said University of Pennsylvania law professor Geoffrey C. Hazard. “He is talking to a group that has a strong view on the kind of issue that will come before the Supreme Court. I think it is preferable for justices to exercise restraint and to back away from groups that are overtly political.”
Hofstra University law professor Monroe H. Freedman agreed. “I think he should have passed on this. He can say he went to honor the cardinal, but that is not sufficient. If it is an adversarial organization working on issues in the public eye and before the court, how could he justify going there? What’s beginning to emerge here is a sense of hubris — that he is above the rules.”