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.
Justices get bound copies of their own opinions as a gift from West. Law professors everywhere can get free and for the asking "desk copies" of West books -- ordinarily priced at $40 and up.
What the justices also got from West were all-expense paid trips to meetings in exotic locations to pick a winner for the company's coveted "Devitt Prize." Named for Edward J. Devitt, the chief U.S. district judge in Minnesota, who died in March 1992, the $15,000 cash prize is given annually to a federal judge for outstanding service. Judge Devitt's private papers yielded a number of documents for the Star Tribune stories.
In its response to the reports, West Publishing asserted the legality of its actions and said that it "resents the innuendo that court cases involving the company may have been decided on something other than merit."
It accused the Minneapolis newspaper of using "tabloid journalism of the worst order" to "cast a cloud of doubt and distrust over one of the most trusted institutions in our American governmental structure, the United States Supreme Court."
It also said that the Star Tribune stood to gain a business advantage by "diminishing the reputation and good standing" of West because the newspaper recently announced plans for an on-line informationservice that would compete with West's data base.
West's control of part of that base is currently facing a legal challenge from Matthew Bender and Company, a competing legal publisher. The Bender company is owned by Times Mirror Corp., which also owns The Baltimore Sun. Bender is seeking a ruling in federal court in New York allowing it to use West's citation system, a case-tracing guide. West claims copyright to that system.
Mild interest in Congress
Congress, responding to the Star Tribune allegations, has displayed mild interest in the West Publishing incidents, taking the unusual step of questioning the justices, briefly, about ethics. But, in this busy year of the Republican "Contract with America," there is no sign that judicial ethics is even on the agenda.
The justices are declining to be interviewed on the incidents, but four present or former members have commented on it in various forums. Justice Kennedy told a House appropriations subcommittee March 8 that it was a tradition for a member of the court to serve on the Devitt prize committee, and that it was "quite appropriate" to accept travel reimbursement, in the same way as justices do when they make a speech to a bar association. Justice Antonin Scalia said essentially the same thing in a letter to the Star Tribune.
Justice David H. Souter, with Justice Kennedy at the House hearing, said that "there is absolutely no substance in any suggestion that West may have gotten any preferential treatment" at the court in return for the trips. Retired Justice Powell, in a letter to the Star Tribune, praised West's role in the legal profession and said he was proud to serve on the awards panel.
Rep. Barney Frank, a Massachusetts Democrat on the House Judiciary Committee who thinks the free trips taken by the justices were "unwise" but not unethical, was doubtful Congress would try to legislate stricter standards.
"The [constitutional requirement of] separation of powers pretty much insulates them," he said. "It would have to be something much more egregious to overcome that barrier."
Besides, Congress has long shown a desire to nudge the court gently, rather than shove it firmly, on judicial ethics.
Only one justice in modern times, Abe Fortas, quit under an ethical cloud -- taking money for giving legal advice to a friend while serving on the Court; Congress had little to do with his resignation.
There is no suggestion that the justices broke any law by accepting the travel for themselves and sometimes for their spouses.
The questions now being raised in some quarters over the incidents are ethical, and many of those focus on the grandeur of the sites to which the justices traveled at West's expense.
In a letter March 16, 1984, to Judge Devitt recovered by the Star Tribune, Justice Powell wrote about a meeting site: "Caneel Bay is a place my wife Jo and I always have hoped to visit. This would have our warm approval. If you wish to meet in the fall -- a lovely time of the year -- we would be available . . ."
Within weeks, Justice Powell reportedly received a letter from Dwight Opperman, West's board chairman and chief executive, informing him that the meeting would indeed be held at Caneel Bay -- an exclusive resort on St. John, Virgin Islands. Wrote Mr. Opperman: "The Devitt committee travels first class, of course."
"That stinks," said Maryland law professor Dash. "I don't think it was appropriate, frankly, for the judge to recommend to the host where they should be having their thing because he has a personal preference for going there."
But, added Mr. Dash, "the only thing that would prohibit members of the Supreme Court doing anything is the Supreme Court . . . They are pretty much free agents."
The company-paid trips, legal ethics specialists have suggested, posed at least three questions about the justices' conduct:
* Should the justices ever take travel money or accept gifts from anyone?
* Should they do so from anyone likely to be involved in lawsuits, or likely to be a major supplier of legal materials?
* If they do, should they always disqualify themselves when the company or group that paid their way turns up in a court case before them?
But the answers to those questions, according to New York University law professor Stephen Gillers, a leading specialist on legal ethics, involve "a matter of degree," calling for "cautious judgment." He also stressed a "need to be charitable."
His own answers, in brief, to the questions:
* A justice can accept generosity from any source that is not likely to appear as a routine in court, and that would include "generic" bar associations that do not have any particular point of view;
* A justice "almost never" should accept something of real value from a source likely to have cases in court, and certainly not "a lavish vacation -- I can't think of any good reason to accept that;"
* And a justice should not have to disqualify from every case involving a source of generosity, unless the act of generosity were something that amounted to "a significant benefit that a reasonable member of the public would consider valuable."
The Rev. Robert F. Drinan Jr., a Jesuit priest who formerly served in Congress and now teaches legal ethics at Georgetown University, commented wryly about the new revelations: "Of all the evils in the world, this is the least in my mind -- it's kind of a nice story, titillating the Supremes. Maybe there is something I am missing, but I don't think it's going to fester into a big scandal."