On October 5, 1998, U.S. Supreme Court Clerk William K. Suter (a Tulane graduate) informed Bernofsky's attorneys that his petition for a writ of certiorari for Case No. 97-1844 was denied.
The participation of U.S. Supreme Court Justice Antonin Scalia in this outcome is noteworthy.
Tulane had funded summer trips for Scalia to lecture in Italy (Siena, 1991) and Greece (Rhodes, 1987; Crete, 1997) for its Summer School Abroad program . Nevertheless, Scalia, who oversees the Fifth Circuit, did not abstain from ruling on whether the Supreme Court would hear this or the following case against Tulane that Bernofsky brought before the high court in 1999.
Only after Scalia's involvement with Tulane was exposed on Tulanelink did he recuse himself from subsequent Tulane cases. However, the damage was already done for the 1998 and 1999 petitions.
- International & Comparative Law & European Legal Studies, Tulane Law School, 2000, p. 5.