Commentary: Justice Scalia, the Roberts Swearing In, and Tennis
Courtesy of How Appealing, ABC News has this “investigative report” that raises an “ethics controversy” because Justice Scalia missed the swearing in of the Chief Justice because he was at a Federalist Society event. A caption to the on-line story asserts that “Scalia missed John Roberts’ swearing-in ceremony as chief justice to play tennis.”
This story strikes me as bordering on character assassination. (I say this as someone who is not a member of the Federalist Society.) 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.
Although I sometimes believe that the Supreme Court press corps could be more proactive, it strikes me that stories like this one have the potential — indeed, almost seem designed — to undermine public confidence in the judiciary. I react particularly strongly because I think that there has been a healthy trend towards the members of the Court, in a sense, coming out of their shells.
UPDATE: I now see this post by Orin Kerr on Volokh mocking the report.
I think your comments are particularly well -taken. In substance this “misbehavior” is a lot of nothing.
Comment by The NJ Annuitant — January 24, 2006 @ 11:26 am
Tom,
The media’s liberal bias is showing. Do you really think that if Justices Ginsberg or Bryer missed the swearing in because of a prior commitment to the ACS, ABC would be running that story?
Comment by Brad D. Bailey — January 24, 2006 @ 12:35 pm
The Federalist Society event that Justice Scalia was attending was a CLE conference on the separation of powers that he co-taught with LSU law professor John S. Baker, Jr. The event had been publicized to Federalist Society members many months in advance.
Comment by Warren Dodson — January 24, 2006 @ 2:13 pm
“I react particularly strongly because I think that there has been a healthy trend towards the members of the Court, in a sense, coming out of their shells.”
Agreed. It is hard enough to get them to attend events as it is, and garbage like this can only make them more reluctant.
Comment by Kent Scheidegger — January 24, 2006 @ 5:32 pm
Seems to me what is missing is a kind of McLuanesque realization that the reporting is typically adorned avoidance of clear statement: that is, what is being told is that the Federalist Society is important to Justice Scalia, and, tacit, a growing number of other Justices and a certain soon-to-be Justice, that is, the story is not about a vanity item that will evanesce as quickly as any tabloid fiction; rather, the tale is more about the constitution yet another gradation into some form of exile. Though it is nice to know the event is a CLE. I am sure Roberts has no problem with fine scholarship and continuing education, and supports it. As long as the sports aspect which we discuss is only tennis.
Comment by JohnL — January 24, 2006 @ 10:05 pm