Judicial junkets to sunny locales stir winds of debate

March 19, 1995|By Lyle Denniston and Gilbert A. Lewthwaite | Lyle Denniston and Gilbert A. Lewthwaite,Washington Bureau of The Sun

WASHINGTON -- Supreme Court justices wear black robes to show their neutrality, but their ethical world is a gray zone of rules they interpret for themselves, with few unbreakable do's and don'ts. The lack of clarity has been dramatized by a new controversy over the ethics of justices taking expensive junkets.

The debate currently swirling around the court was triggered by revelations that seven current or former members traveled to posh resorts -- sometimes selected by the justices themselves because of the conspicuous luxury -- with the tab picked up by a major legal publishing firm, Minnesota's West Publishing Co.

One of West Publishing's hometown newspapers, the Minneapolis Star Tribune, rocked its own community and -- to a degree -- the national legal establishment early this month with its investigative report on the justices' junketeering.

The impact was enhanced by the fact that a principal target of the Star Tribune stories was one of the establishment's most revered figures, former Justice Lewis F. Powell Jr. He was cited for recommending resorts in Palm Beach, Fla., and the Virgin Islands, saying that he and his wife wanted to go there.

Besides Mr. Powell, who is now retired, current Justices Sandra Day O'Connor, John Paul Stevens, Antonin Scalia, and Anthony M. Kennedy and now-retired Justices Byron R. White and William J. Brennan Jr. took the trips one at a time over a 13-year period. They took turns sitting on a panel to pick the winner of a West Publishing-sponsored judicial award and worked only a few hours, leaving ample time for enjoying the amenities.

Scholars of legal ethics have been engaged busily in recent days reacting in various ways to the Star Tribune stories and to the scent of something that may be questionable at the highest court.

Within the court, there is no sign that the justices feel under siege as a result of the disclosures. It seems clear, however, that some justices have discussed the furor among themselves, at least briefly, and there are indications that they feel misunderstood on the specifics of what they were doing and its ethical meaning.

When challenged sharply on ethics, the justices in the past have tended to follow a pattern: First, they point out that they broke no law or no binding rule; second, they find a way to rethink what they have done; and, finally, they change. They do not relish being at the center of an ethical uproar for long.

The ethics scholars predict that negative public reaction will lead the justices to end or strictly curtail the practice of taking a free ride or a free vacation at a spa from those who want to sell things to the courts or take cases to them.

Geoffrey Hazard Jr., a University of Pennsylvania law professor and widely known ethics analyst, who says he resents criticism aimed at the justices over the new disclosures and argues that it will have no "real effect on them whatever," nonetheless expects a change from within.

"The judges are going to conclude that the hassle, the abrasion, the abuse, the questions are not worth it. They will just say, 'To hell with it, I don't need to do this. Forget it.' "

Abraham A. Dash, a University of Maryland law professor who teaches a course on ethics, commented: "I am positive, if we were a fly on the wall in their chambers, we would see a memo or probably a discussion among the justices that they really have to watch what they are doing."

West Publishing could make it easier for the justices, several commentators suggested, if it would spin off to a separate foundation the activity that led to the Star Tribune's revelations.

West Publishing's pull

At the center of the new ethical debate is a highly successful corporation, which has long dominated the business of publishing books and other written and electronic legal aids. West Publishing has recently had to fight off competitors in an effort to maintain its lead role. It can be a tough adversary: it forced the Justice Department to back down on a plan to publish court rulings in competition with West products.

West Publishing itself has been involved from time to time in cases taken to the Supreme Court, but seldom in a case leading to a final decision. Since 1915, it has been a party in 13 cases there, but the court has agreed to decide only one of those, leading to a 1946 loss for West.

Frequently in those cases, West had won in the lower courts, and the failure of the other side to get the Supreme Court to hear an appeal left West's victories intact -- sometimes, to its considerable commercial advantage.

Its books line many of the shelves in the Supreme Court's vast library, and justices and their clerks spend hours and hours poring over the pale green screen images on West's wide and deep legal data retrieval system, WESTLAW -- as do many

newspaper and broadcast reporters logging onto the free console West has put in the court's press room.

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