By: Mike Cuenca
Late last week, the Los Angeles Times published an article describing a second hunting trip taken by U.S. Supreme Court Justice Antonin Scalia with parties involved in a case before the court. The story of how this issue finally came to the nation’s attention is a case study of disparate levels of journalistic enterprise and, perhaps, integrity.
My involvement with this story began way back on Nov. 16, 2001, when the Lawrence, Kan., Journal-World (my hometown newspaper) published an article describing Scalia’s visit to the University of Kansas School of Law. It didn’t make a big impression on me.
The following week, on Nov. 25, The Kansas City (Mo.) Star briefly mentioned that Scalia had gone pheasant hunting with Kansas Gov. Bill Graves and former state senator Dick Bond while he was here on that trip. Again, I didn’t think much of the story’s larger implications.
But a few days later, on Nov. 29, the Journal-World published another article, this one describing how the dean of the KU School of Law and one of his former students had argued opposite sides of a case before the U.S. Supreme Court. The dean, Stephen McAllister, who had clerked for U.S. Supreme Court justices Byron White and Clarence Thomas, was also solicitor for the State of Kansas, handling all of their high-level appeals. The case was an important challenge by the State of Kansas to the constitutional protections of the Fifth Amendment.
Kansas had instituted a policy requiring convicted sex offenders to confess their crimes in order to receive psychological counseling. Apparently, participating in counseling also earned these offenders other rights, including “time in the recreation area and personal televisions,” according to the Journal-World article. The prisoner’s right to protection under the Fifth Amendment had been upheld by the Tenth Circuit Court of Appeals and had been appealed to the Supreme Court by the state of Kansas.
Immediately, I tied the stories together. The state of Kansas was arguing a case before the U.S. Supreme Court and one of the justices of that court had traveled to visit with the attorney for the state and had wound up going hunting with the state’s chief executive. I know enough about the practice of law to know that ex parte (one-sided) communications between judges and the parties to a case before him or her is not allowed.
The involved parties have all denied any connection between the trip and the case, but that’s impossible to verify, which is a good argument for why such contacts should be avoided.
I believed that this story deserved more attention. I put together the links for the articles about the trip and the case, and sent them to various media outlets, but got no response.
So questions remained: Who paid for the trip? Who else did Scalia meet with? Did Scalia meet alone with McAllister, who was attorney for a party in a case before the Supreme Court? Did Scalia offer McAllister advice on what arguments to put forth?
By the following summer, the Supreme Court had ruled 5-4 in Kansas’ favor. Scalia voted with the majority. On June 15, The Washington Post published an editorial lamenting the decision as “a dangerous principle for the justices to be embracing.”
This ruling represented a significant weakening of one of Americans’ most important constitutional rights. The precedent now exists for the state to limit that constitutional right under at least one circumstance, which may prove to be the first step that leads to additional rulings allowing the further limiting of that right or other constitutional rights under certain conditions. For that reason, I’ve never understood the lack of interest in the story.
When the decision was announced, I circulated links that tied the ruling with Scalia’s trip to Kansas. Again, I received no response and no one picked up on the story.
Fast forward to this year. The Los Angeles Times reported on Jan. 17, 2004, that Scalia had accompanied Vice President Dick Cheney on a hunting trip to Louisiana, even though Cheney is a party in a case before the Supreme Court. I quickly dispatched letters to the editors of the L.A. Times and the Kansas City Star, reporting on the 2001 hunting trip. Neither paper published my letter. I sent the links to the previous Kansas trip to the same major news outlets I had before. No one responded.
I contacted L.A. Times reporter David Savage directly, providing him with the information about the Kansas trip. He thanked me for the information and said they were looking into the financing of the Louisiana trip.
After Savage on Feb. 5 broke the news that Cheney had provided Scalia with the transportation to Louisiana for the hunting trip, I again submitted a letter to the Kansas City Star. This time, I received a response, from their letters department and from a reporter. The reporter asked me where I got the information about the Kansas hunting trip (I told him it was published as a brief in his own paper), and if I was a party to the case. He thanked me for the information and that was that.
A few days later, I contacted the letters department and asked if my letter would be published. I was informed that the Star had decided to run an article instead of my letter. The article turned out to be an item of 138 words, tucked away in the Metro briefs, with dismissive quotes from Bond, the former state senator who had been on that hunting trip with Scalia.
By then, I was feeling pretty furious about what seemed to be a flagrant lack of journalistic curiosity in our media. But Savage and reporter Richard A. Serrano had apparently followed up on my lead and published an in-depth description of the Kansas trip in the L.A. Times last Friday. That day, the wire services carried the Times article and it appeared across the nation, including here in Lawrence.
The next day, the L.A. Times and The New York Times published editorials pointing out that the new story added a significant element to questions about Scalia’s impartiality and ethics. The Washington Post picked it up and published their own piece on the L.A. Times story.
Finally, the significance of Scalia’s trip to Kansas is apparent to the national media. I can’t help but wonder why it wasn’t apparent when it happened. I can’t help but wonder how many other stories of similar significance the national media have also ignored.
Oh, and on Feb. 29, the Kansas City Star finally ran the detailed L.A. Times story of the Kansas trip.