Jan. 23, 2006 — At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society.
Not only did Scalia's absence appear to be a snub of the new chief justice, but according to some legal ethics experts, it also raised questions about the propriety of what critics call judicial junkets.
Ooooh. Sounds bad, doesn't it? At least, until you get the whole story: he was teaching a freaking class, people.
The Rocky Mountain News fills out the story:
Leonard Leo, executive vice president of the lawyers' group, The Federalist Society, said Tuesday that Scalia attended the group's meeting to teach a 10-hour course for more than 100 lawyers from at least 38 states on the separation of powers under the U.S. Constitution.
The meeting was at the Ritz-Carlton Bachelor Creek in Avon, between the Vail and Beaver Creek ski resorts.
Leo said in a statement Tuesday that ABC wrongly characterized Scalia as playing tennis at the resort instead of attending Roberts' swearing-in.
"Justice Scalia arrived and left Colorado without spending any extra days to engage in recreational activity. He arrived at the hotel the night before the course at 11 p.m., having traveled by car for three hours . . . He departed at around 6:30 a.m. the morning after the course ended in order to fly back home. The event started at 8 a.m. each of the mornings, and, despite ABC Nightline's emphasis on Justice Scalia participating in tennis at the hotel, he spent less than two hours playing the game over the course of those two days," the statement said.
Leo called the course "a serious scholarly program that required much work and advance preparation." He said Scalia prepared a 481-page course book, containing edited cases on separation of powers issues, that was given to all attendees in advance.
"Justice Scalia presented the course with LSU law professor John Baker. Both were present together on the rostrum for the 10-hour course, and both received reimbursement for travel and lodging. John Baker received an honorarium. Justice Scalia did not," Leo said.
He said Scalia agreed almost a year in advance to teach the course, and that the Roberts swearing-in wasn't firmly scheduled until the day before.
Sean Serrine of Objective Justice was there:
Like, OH MY GOD! Justice Scalia wasn't at the Roberts swearing in ceremony because he was, gasp, giving a lecture on the seperation of powers! . . .
Now, I need to mention that I'm a bit biased as far as this story goes. Why? Well, I was there and yes, I got the "rare opportunity to spend time, both socially and intellectually" with Scalia. As a law student, what could be better than learning substantial law from a sitting Supreme Court Justice. The Federalist Society wasn't influencing him, he was influencing all of us with his jurisprudence. ABC misses the point entirely, (as usual), and they make a complete ass of themselves.
Walter Olsen at the Point of Law Forum dubs it "The Dumbest Judicial Ethics Story Ever."
SCOTUSBlog feels it borders on character assassination:
The story quotes Justice Scalia as explaining that he missed the swearing in because of a prior commitment he could not break. The claim that he missed the event to play tennis is just absurd; this was not a tennis camp. Rather, so far as the story reveals, the program was a legal program centered around Scalia's participation. It appears that many attendees planned their travel in reliance on his planned attendance.
I am not a legal ethics expert; far from it. But on the facts as described by ABC (and there may be other details that aren't known) I completely fail to see the controversy. The Federalist Society does not litigate cases. It does not (so far as I know) even take positions on judicial nominees. Events like these are similar to those hosted by the American Constitution Society, which more liberal Justices attend. These events strike me as very valuable because they expose more people to the Justices, and vice versa.
I'm sure that Justice Scalia would have preferred to attend the swearing in. The story's assertion that his absence "appear[ed] to be a snub of the new chief justice" is true only in the sense that some people would be willing to take "appear[ances]" without regard to the circumstances. Scalia no doubt explained his unavoidable absence to the Chief, and likely to the full Court.
Orin Kerr comments:
Justice Scalia missed Chief Justice Roberts' swearing-in ceremony because he was giving a series of lectures on constitutional interpretation in Colorado — and he even had the nerve to exercise during his trip!!! . . .
A group of law professors are rumored to be circulating a letter demanding that in light of Scalia's absence from the critical ceremony, Scalia's vote should now be ignored, and the vote of Justice Ginsburg (who was present) should be counted twice.
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