Justice Scalia is kind of a troll sometimes. He routinely snarks out his fellow justices and is a total dick to legal luminaries like Judge Posner. His belligerence is drenched in sarcasm and usually arbitrary.
In a sense, Antonin Scalia is ATL’s spirit guide.
But when he went after an attorney appearing before him, he got immediately chastised by a fellow justice and raised the ire of even conservative commentators.
In this instance, I’m going out on a limb and say Justice Scalia was absolutely, positively, 100 percent right….
This all took place yesterday during the opening moments of the oral argument in Marvin M. Brandt Revocable Trust v. United States. Steven J. Lechner, the Vice President and Chief Legal Officer of the Mountain States Legal Foundation, was making his first appearance before the Supreme Court. That’s when things took a turn:
Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.
MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -
JUSTICE SCALIA: Counsel, you are not reading this, are you?
After what Lyle Denniston described as “a lengthy embarrassed moment,” Justice Breyer came to the lawyer’s aid by reassuring him: “It’s all right.”
Professor Josh Blackman had this to say about the exchange:
Pardon the French, but this is a dick move by Justice Scalia. Just because he wears a robe does not entitle him to be a jerk, and embarrass the lawyer for something like this. Scalia can be annoying, and pester lawyers on the merits, but attacking him for reading (what seemed to be a position Scalia agrees with!) is uncalled for. I understand judges at all levels are often mean and discourteous to the litigants, but generally at the Supreme Court both the bar and bench try to comport themselves at a higher level.
Meanwhile, Robert Thomas of Inverse Condemnation wrote:
You know, we’ve all been there in some venue, haven’t we? We’re all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes. Heck, we won’t even go down to muni court naked (so to speak). Especially when what’s at stake is the language in an otherwise obscure 1875 federal statute, where it’s important to get the language just so. To the Justices, oral argument is just another day at the office. And maybe that’s also true for the usual suspects downrange at the Court who appear regularly. But for those lawyers from outside the D.C. bubble, a Supreme Court case can be a once-in-a-career experience, and, we imagine, a very nerve-wracking experience, even if you do get a nice feather pen for your troubles. Especially with all of the coverage of every argument — even those not of obvious public interest that may have in years past, gone unnoticed by the larger media — where counsel’s every movement is blogged, twittered, and splashed all over the front pages of the papers for everyone to comment upon. So come on folks, give the guy a break. At least until you have stood in his brogues, and gone toe-to-toe with Their Honors and lived to tell the tale.
Given that the Mountain States Legal Foundation is exactly the sort of right-wing advocacy group that Justice Scalia bases his jurisprudence around, you’d think he’d take it easy on this guy — and he basically did after getting this first dig out of his system. And maybe that’s why conservative analysts like Professor Blackman took this hard. Liberals would surely look askance at Justice Breyer ripping a NARAL lawyer. But this is actually one of the best reasons why Justice Scalia was totally justified: you should hold the people you agree with to a higher standard. I mean if the guy is chained to his notes, how can he be expected to hold his own when Justice Ginsburg starts grilling him?
Also, according to reports, Lechner “continued on for about a page in the transcript.” I’m not saying every advocate before the Court has to completely wing it like Paul Clement, but there’s a big gap between going “down to muni court naked” and reading a page worth’s of argument verbatim from notes.
A prominent litigator once told me before an oral argument that I should have a pad bearing only my name on it. His logic was that the first thing you have to do is introduce yourself and once you get that right you should be able to handle the argument just fine. I’m not sure I’d give the same advice to everyone, but if you’re going before a judge — and especially if you’re going before the Supreme Court — you can use your notes to keep citations straight or to guarantee you’re properly quoting from the opposing brief or prior opinions, but take the time to get the skeleton of your oral argument committed to memory. If you haven’t lived with this case enough to have its nooks and crannies committed to memory, you probably aren’t ready anyway.
Moreover, as Ben Adlin noted in a piece we linked to in Non-Sequiturs last week, appellate judges (except Justice Thomas) interrupt counsel almost immediately to pepper them with questions:
Amid the turning gears of the appellate engine, oral argument is a “minor, almost formulaic part,” said Loyola Law School professor Allan Ides, a former Supreme Court clerk. “I can tell you, at the Supreme Court level, very, very rarely are oral arguments going to make a difference,” he said. “You don’t even in most cases get to make an oral argument. You just get grilled.”
Relatively speaking, lawyers today give argument at a sprint – counsel at the Supreme Court typically have only 30 minutes, and even then justices so pepper them with questions that they, in the words of Justice Elena Kagan, “don’t get a chance to talk in paragraphs.”
There’s little value to drafting something to read. The justices read the briefs, and when they sense that they’re just getting a rehash of a polished brief, they are more inclined to start screwing with the flow. And as Lechner learned yesterday, it’s even more jarring when a prepared statement is interrupted.
So good for Justice Scalia to shame the guy off his notes. From the rest of the account of the oral argument, once Lechner gave up on his crutch he did a decent job — Scalia just gave him the nudge he needed.
Next time he should just put his name on his pad.
(Flip to the next page to see the full transcript.)