On Thursday evening, I had the great pleasure of attending the annual dinner at the Federalist Society’s National Lawyers Convention, in Washington, D.C. The event — attended by an estimated 1,400 people, and held in the cavernous ballroom at the Omni Shoreham — featured, as always, conservative and libertarian legal luminaries galore.
(Did Judge Diane Sykes just air-kiss Judge Diarmuid O’Scannlain? Isn’t that Ken Cuccinelli over at the bar? What might Judges Brett Kavanaugh and Jeff Sutton be discussing so intently — maybe the latest clerks they’ve placed at the Supreme Court? Whoa — Ted Olson chatting with Justice Samuel Alito! Be still my heart….)
The highlight of the evening was the interview of Justice Antonin Scalia by Jan Crawford, chief legal correspondent of CBS News (who was looking fabulous in a black dress with open sleeves). The justice was in fine form, hilarious and freewheeling in his remarks….
Folks weren’t sure what to expect beforehand, since the dinner presentation is usually a speech rather than an interview. “Why don’t they let the justice just do his thing?” wondered one attendee, who was skeptical of the unusual approach. But even she was won over by the end of the hour-long event.
It started off a little awkwardly, with Crawford and Scalia sitting in chairs on stage having an “intimate” conversation — in front of over a thousand people, with two large screens beaming their images to the crowd. Being in the audience initially felt like being a fly on the wall for a first date.
(“So, what do you like to do for fun?” “Oh, I love duck hunting! And writing blistering dissents.”)
But Crawford, a skillful interviewer, got Scalia to relax and speak expansively about a wide range of subjects. Some of these topics he’s covered before, and the crowd — accurately described by Robert Barnes of the Washington Post as “adoring,” and chock full of Nino groupies — surely recognized this. But the justice’s delivery made even old material feel fresh.
Crawford started out with a familiar topic: cameras in the courtroom at One First Street. She asked whether we might see some change on this front, now that Justice David Souter — who famously said that cameras would roll into the courtroom “over my dead body” — is no longer on the Court.
“It’s not just that Souter has left the Court,” said Scalia, “but that Specter has left the Senate.” Scalia did not intend this as a joke — he was just referring to Senator Arlen Specter’s staunch and repeated advocacy for cameras in the court — but the quip was received with laughter (and even applause) by the largely conservative, Specter-loathing audience.
The next topic was also not novel. Crawford asked Scalia about what his appointment to the Court meant to the Italian-American community, noting that he might have been picked in part to win electoral support from that constituency. Scalia said he didn’t realize what his appointment meant to them — he thought he was picked because he was “so damn well-qualified” — until he started to get cartloads of mail at the Court from Italian-Americans who were thrilled about his appointment. The famously blunt Scalia did not mince words: “It did mean a lot to them, because they had this mafioso thing hanging around their necks.”
(And maybe one of Justice Scalia’s colleagues feels this way too? Back in 2008, Justice Samuel Alito — who was in the audience for Thursday night’s event, by the way — criticized The Sopranos for perpetuating stereotypes about Italian-Americans.)
This led to a discussion of diversity on the Court. Scalia made a statement that would perhaps put him at odds with Justice Sonia “Wise Latina” Sotomayor:
I don’t think there’s such a thing as a woman judge or a man judge or an Italian-American judge or an Anglo judge. There are good judges, and there are bad judges.
This was met, not surprisingly, with applause from the crowd. He added, “Diversity is good to have, but should not come at the expense of quality.” (Scalia quickly clarified, lest anyone suspect he was pulling a Larry Tribe and disparaging The Wise Latina’s intellect, that he didn’t think it had come at the expense of quality of the justices.)
Crawford observed that there are still only three women on the high court. Scalia wisecracked: “Whaddya want — five? Insatiable, insatiable….”
As an alumna of the University of Chicago Law School, where Scalia taught years ago, Crawford elicited Scalia’s thoughts on former dean Geoffrey Stone’s controversial claim that five Catholic justices ruled based on their religion in a partial-birth abortion case. Scalia — who was said to have been infuriated by the comment back when it was made in 2007, to the point where he temporarily refused to visit Chicago Law — responded tartly that Stone’s remarks were “not worthy of a response.”
Following up on this, Crawford asked Scalia if he ever found himself in a situation where he was torn between his personal conscience and his professional duty as a justice. He said no. After Crawford expressed a hint of incredulity — you’ve never encountered such a situation, in your many years on the bench? — Scalia quipped, “Maybe I have a lax conscience.” The resulting laughter cleared the air nicely.
Conversation turned to whether the Supreme Court’s opinions offer adequate guidance to the lower courts and litigants — a topic recently raised in this fascinating New York Times article by Adam Liptak, which Crawford explicitly referenced. Scalia appeared to agree with the general thrust of the piece.
“You can write a fuzzy decision that gets nine votes,” Scalia said, “or a very clear decision that gets five votes.” He seemed to express the view that the latter is preferable to the former.
This led naturally into the next topic, the role of the chief justice. Chief Justice John Roberts and Roberts’s former boss, the late Chief Justice Rehnquist, made efforts to promote unanimity in their capacities as chief. This is not Scalia’s cup of tea, as David Ingram of the BLT explained:
Scalia said he witnessed a change in Rehnquist’s opinions after he became chief justice in 1986. “He was a shin-kicker before he became chief justice. He wrote very sharp, combative dissents,” Scalia said….
[Scalia said] he was never approached about becoming chief justice around the time William Rehnquist died in 2005, but he said he wouldn’t have enjoyed the job anyway…. [H]e would have felt pressure to build consensus on the Court if he had become chief justice. That would have meant, he said, writing fewer fiery opinions and concurrences.
“That’s always the problem, and that’s why I’m glad I’m not chief justice,” Scalia told the meeting of conservative lawyers….
“Would you have accepted?” Crawford asked.
“I don’t know,” Scalia said. After a pause, he added, “I wouldn’t have liked it,” but he said he would have considered the opportunity.
There was also a funny exchange about all the recent changes in the Court’s membership. Crawford noted that before Chief Justice Roberts and Justice Alito arrived at One First Street, there was an 11-year span during which the Court’s composition didn’t change. Crawford asked Scalia: What was that like? Said Scalia: “That was nice.”
Crawford then pointed out, with a mischievous smile, that Justice Alito was in the audience — at a table quite close to the stage. Scalia made eye contact with Alito and said, “Nothing personal!”
Bringing in Justice Alito led somewhat naturally into the next topic of discussion: justices attending the State of the Union. It was Alito, of course, who famously mouthed the words “not true” during President Obama’s discussion of Citizens United. (The ensuing controversy led Alito to declare that he’ll probably avoid the next SOTU.)
Scalia expressed agreement with the view of Chief Justice Roberts, who back in March opined that the State of the Union has “degenerated to a political pep rally.” Said Scalia: “It is a juvenile spectacle, and I resent being called upon to give it dignity…. It’s really not appropriate for the justices to be there.”
By this point, the conversation started to shift into the home stretch, so Jan Crawford turned to fun stuff and lighter fare. She asked Justice Scalia: Do you have an iPod?
One might have expected Scalia, whose jurisprudence often involves traveling back in time to when particular constitutional provisions were enacted, to declare that he listens to all his music on a Victrola — but no. As it turns out, he does have an iPod!
This response seemed to catch Crawford by surprise. She asked him if he uploads the music himself; he said that he does, and that his playlist consists mostly of classical music and opera.
(It’s amusing to imagine Justice Scalia, one of the greatest legal minds in our nation, loading up his own iPod like a mere mortal. Couldn’t he ask a staffer to do it, or maybe one of his many grandchildren? But then again, if Justice Elena Kagan can fetch her own pizza, then Justice Scalia can load his own iPod.)
As it turns out, Scalia is more tech-savvy than one might have expected from a 74-year-old. He composes his opinions on a computer (unlike Chief Justice Roberts, who writes in longhand). In fact, said Scalia, “I can hardly write in longhand anymore” — which he’s reminded of whenever he has to write a handwritten condolence note.
When he has to take materials home for work, he uses a thumb drive, or accesses the Court computer system remotely. And perhaps most excitingly, as I previously reported on Twitter, Scalia has an iPad! He uses it for working at home; staff members load the parties’ briefs on to it.
Moving away from technology, Crawford turned to the topic of Supreme Court clerks. She asked Scalia why he doesn’t hire more of his clerks from state schools. He responded by ticking off the state schools he has hired clerk from — Michigan, Texas, UVA (interrupted by audience applause after each school’s name) — and jokingly asked Crawford: “Where do you get your facts?”
Turning serious, Scalia acknowledged that he hires mostly from the Harvards and Yales of the world, and confronted the real issue here: alleged elitism in law clerk hiring. His response, which drew laughs: “I don’t want to have a clerkship that looks like America! And there are only four of them.” He then reprised his somewhat controversial defense of elitism in law clerk hiring: “The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber.”
(Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.)
Crawford closed the interview by asking Scalia for his biggest pet peeve about media coverage of the Court. “Oh, that’s a beauty,” he responded, again drawing chuckles from the crowd.
His substantive response to this question was quite funny — but a little rambling, and not marked by his trademark clarity. The upshot of his remarks seemed to be that media outlets take complex legal disputes, based on technical and doctrinal questions of law, and reduce them to “good guy / bad guy” narratives (he had a great riff here on The Merchant of Venice). But one can’t expect newspapers and other news outlets to cover the courts any other way, said Scalia, because if they did, “they’d lose their readership.”
Take SCOTUS coverage. Media coverage always focuses on hot-button issues like abortion or gay marriage, but most of the Court’s day-to-day work involves construing statutes in such uber-sexy areas as ERISA, tax, and bankruptcy. Quipped Scalia: “Ninety-five percent of what we do is that junk!”
In this manner, the conversation came full circle, returning to cameras at the Court. According to Scalia, if cameras were allowed in the courtroom, the result would not be a better-educated public, but just more distortion. For their nightly broadcasts, the news networks would grab 30-second clips from complex and lengthy oral arguments; these little clips, ripped out of context, would misinform rather than enlighten. This would not serve the public interest.
Scalia emphasized that his opposition to cameras isn’t based on any self-interested motive, since he believes he’d excel on TV: “I could ham it up with the best of them on television,” he boasted good-naturedly. “I’d do very well.”
And based on his fantastic and funny performance on Thursday night, this viewer enthusiastically concurs.
UPDATE: One important comment by Justice Scalia that I neglected to include in my initial write-up: he has no plans to retire. From the Washington Post:
And for those not quite as thrilled with Scalia as the Federalist Society — stand down. No retirement plans on the horizon, he said.
Crawford noted he had once said he might leave the court when he was 65, to which the 74-year-old Scalia replied that meant he’d been working nine years for free. He said he had not thought about retirement, except to vow he “will leave the minute” he feels he’s lost a step.
Don’t hold your breath waiting for that moment to come. Scalia seems to be as sharp and incisive as ever.
Scalia on cameras, retirement and the ‘brave new world’ [Washington Post]
Scalia ‘Wouldn’t Have Liked’ Being Chief Justice [The BLT: The Blog of Legal Times]
Justice Scalia: The State Of The Union Address Is A ‘Juvenile Spectacle’ [Huffington Post]