Supreme Ethics Problem?

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.

"It's unfortunate of course that what kept him from the swearing-in was an activity that is itself of dubious ethical propriety," said Stephen Gillers, a New York University law professor, who is a recognized scholar on legal ethics.

Scalia Mum

Scalia spent two nights at the luxury resort lecturing at the legal seminar where ABC News also found him on the tennis court, heading out for a fly-fishing expedition, and socializing with members of the Federalist Society, the conservative activist group that paid for the expenses of his trip.

At a press conference, almost two weeks later, Scalia was not inclined to tell reporters his whereabouts during Roberts' swearing-in.

"I was out of town with a commitment that I could not break, and that's what the public information office told you," he said.

It "doesn't matter what it was. It was a commitment that I couldn't break," Scalia continued when questioned further.

According to the event's invitation, obtained by ABC News, the Federalist Society promised members who attended the seminar an exclusive and "rare opportunity to spend time, both socially and intellectually" with Scalia.

"I think Justice Scalia should not have gone on that trip for several reasons," Gillers commented. "They are a group with a decided political-slash-judicial profile."

One night at the resort, Scalia attended a cocktail reception, sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked.

"You know a lot of people would be embarrassed at that. I don't think Antonin Scalia will be embarrassed," Gillers continued.

Other Justices Received Gifts

While there are ethics rules in place for lower federal court judges, there is no explicit code of ethics for the nine Supreme Court justices. Some practices have in turn come under scrutiny, such as accepting trips from groups with political and judicial agenda and gifts from private parties who may at some point have business before the court.

Ron Rotunda, a law professor at the George Mason School of Law, author of a textbook on legal ethics and who is himself a member of the Federalist Society, finds no problem with the Supreme Court justices attending events sponsored by the organization. "I'm a member of the Federalist Society, the NAACP, and the justices get invited to both, and I think that's a good idea," he said. "The organization doesn't have litigation before the judge and is unlikely to have litigation before the judge."

An examination of the Supreme Court disclosure forms by ABC News found that five of the justices have accepted tens of thousand of dollars in country club memberships. And Justice Clarence Thomas has received tens of thousands of dollars in valuable gifts, including an $800 leather jacket from NASCAR, a $1,200 set of tires, a vacation trip by private jet, and a rare Bible valued at $19,000.

"The rules dealing with gifts don't apply to Justice Thomas because the rules only apply to lower court judges," Gillers explained. "People give gifts to judges and justices because they have power. And they have power because of their position that they hold in trust. And to suggest that it doesn't matter, no one will care, seems to me to be whistling in the dark."

At a Crossroads

Some argue that the Supreme Court justices are setting a bad example for other judges, who have been criticized for accepting free trips to luxury resorts for education seminars.

"I think the judiciary is really at a crossroads right now. There is a multibillion-dollar influence peddling industry in Washington, and it really has the federal judiciary in its sights at this point," Doug Kendall, director of Community Rights Counsel and author of a study on trips for judges, said.

The issue of accepting paid trips found its way into the confirmation hearing for now Chief Justice John Roberts.

"So I'd like to know, Judge Roberts, if confirmed, whether you will use your power as chief justice to set a high ethical tone," Senator Russell Feingold, D-Wis., asked.

In reply, Roberts said, "Well, I don't think special interests should be allowed to lobby federal judges. Stated that way, I think the answer is clear."

Roberts, Scalia and Thomas declined comment and requests for interviews by ABC News. A spokesman for the Federalist Society also declined to comment.

Rhonda Schwartz and David Scott contributed to this report.