Tag Archives: Scalia

A word on originalism, courts and legislatures

I saw an interesting quote from Supreme Court Justice Scalia today:

The Constitution, though it has an effect superior to other laws, is in its nature the sort of “law” that is the business of the courts–an enactment that has a fixed meaning ascertainable through the usual devices familiar to those in the law.  If the Constitution were not that sort of a “law,” but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than the legislature?  One simply cannot say, regarding that sort of novel enactment, that “[i]t is emphatically the province and duty of the judicial department” to determine its content.  Quite the contrary, the legislature would seem a much more appropriate expositor of social values, and its determination that a statute is compatible with the Constitution should, as in England, prevail.

Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin.L.Rev. 849 (1989)

In other words, if we believe that the constitution is to be read according to how it was originally understood by those who consented to it, the people, whether a law is constitutional or not is strictly the province of the courts, of trained professionals in the law.   On the other hand, if it is a “living document,” then it should be the legislature that determines what it means.

Food for thought, eh?  In whose hands should the determination of constitutionality of a document be placed?  And in whose hands have we placed that decision to this day?

Being a judge is not a pre-req

Scalia thinks it’s a good thing that Kagan is not a judge.

“When I first came to the Supreme Court [in 1986], three of my colleagues had never been a federal judge,” Scalia said. “William Rehnquist came to the bench from the Office of Legal Counsel. Byron White was deputy attorney general. And Lewis Powell … was a private lawyer in Richmond and had been president of the American Bar Association.”

“I am happy to see that this latest nominee is not a federal judge—and not a judge at all,” Scalia said.

(via ABAJournal)

Practice leads to persuasion, says Scalia

The most important question on any attorney’s mind, especially when going before a judge or panel of judges is: how do I persuade the judge to my view?

Answer? Preparation and practice.  Or at least that the opinion of  Justice Antonin Scalia, associate justice on the US Supreme Court,  and Bryan Garner, president of LawProse, Inc. and editor of such works as Black’s Law Dictionary and A Dictionary of Modern Legal Usage.  Together the two have also published Making Your Case: the Art of Persuading Judges.  As reported by ABANow, they recently spoke to ABA National Legal Malpractice Conference in Washington, D.C., on April 15.

According to Garner, few judges are being convincingly persuaded. “There is a crisis in advocacy,” he said.  Scalia countered, “I am always amazed at the quality of advocacy at the court.” “I keep reminding him that the advocacy is quite advanced by the time lawyers are before the Supreme Court,” said on-stage foil Garner.

If Supreme Court advocacy never fails to impress Scalia, apparently lower court judges must still endure mediocre oral advocacy, or at least oral advocacy that could stand improvment.  And so the Scalia/Garner team offered some tips.

ABA president Carolyn B. Lamm (second from left) and Edith R. Matthai, chair of the Standing Committee on Lawyers’ Professional Liability (right), welcomed Associate Justice Antonin Scalia (second from right) and co-author Bryan A. Garner (left) to the Spring 2010 National Legal Malpractice Conference in Washington, D.C., where they led the opening plenary session with tips on persuasive and effective advocacy in court.

The speakers agreed that oral argument is an art that takes time to refine.  Garner said that many lawyers do not have enough practice in public speaking and that every opportunity to speak in public is one that should be taken.  Scalia concurred, adding that a practiced public speaker will have “no ‘ums’ or ‘ers’” and will know how to modulate his voice.

In lockstep with practice is preparation.  Scalia said the more you can think about the key points of your case ahead of time throughout the day — even while getting ready to go to work or driving — the better equipped you will be to answer questions at oral argument.  This includes going over the entire record of the case in your mind and making notes to have in court.

“Be absolutely clear on the mandate you seek,” emphasized Scalia and Garner.  A judge from the District Court of Minnesota told Garner that, apart from being sure they want to win their cases, “80 percent of lawyers don’t know what they want.”

Scalia and Garner pointed out that even lawyers who know the key points they want to present in argument will go astray if they are not flexible, respectful and perceptive.  For example, Scalia stated, “You are not going to be able to go through arguments in the order you want.  Be prepared to jump from one point to respond to a question. … You always go where the judge takes you.  Never say, ’I’ll get to that in a moment.’”

Scalia also had advice for lawyers who try to play to a specific audience.  “Don’t talk to just one judge, even if you know the court is 4-4.  If you’re playing to one person it’s insulting.”

Other advice included learning to welcome questions from the justices, never postponing an answer, admitting when you don’t know the answer, beginning with a firm ‘yes’ or ‘no’ when responding to a question, recognizing friendly questions lobbed from the bench and willingly answering hypothetical questions.

All great advice, no matter your line of work or area of practice.  It doesn’t matter if you are responding to a question from your boss, a client, a spouse or a stranger, principles of courtesy, punctuality, and competency extend to all.

One suggestion that I thought was especially important, however, especially in the practice of law, is that of practicing communication, be it oral or written.  Knowledge is important, and we lawyers tend to accrue a lot of it, but the ability communicate clearly and effectively cannot be replaced or compensated for.  And even when mistakes are made, it is important to learn from those mistakes.

Garner explained that the key is to learn from mistakes made in court.  “Take the time to figure out what you could have done better. That’s the way to improve.”

“Win or lose,” Scalia summarized, “If your performance has won respect and admiration from the court, then you haven’t lost.”

Kabuki or dissent?

New York Times writer Linda Greenhouse has an interesting analysis of Justice Scalia’s criticism of Chief Justice Robert’s opinion in Citizens United.

In the campaign finance case, he accused Chief Justice John G. Roberts Jr. of “faux judicial modesty” for writing an opinion that in Justice Scalia’s view effectively overturned the court’s 2003 campaign finance decision “without saying so.” The clear implication was that the chief justice lacked the courage or honesty to overturn the precedent openly as Justice Scalia himself would have done.

“This faux judicial restraint is judicial obfuscation,” he said.

And Justice Scalia was scathing in his criticism of an opinion signed by Chief Justice Roberts that limited, but did not completely abolish, the right of taxpayers to go to court to challenge government expenditures that promote religion. Justice Scalia would have gone on to shut the courthouse door completely, not simply limiting but overturning the precedent that the new ruling invoked.

“Minimalism is an admirable judicial trait,” Justice Scalia said, “but not when it comes at the cost of meaningless and disingenuous distinctions.”

Why would he be so direct?  And why would the Chief Justice stop short of doing what Scalia suggests?

Chief Justice Roberts, operating on a long timeline at 52, may be responding to a different imperative. Openly overturning numerous precedents early in his tenure would invite criticism that the Roberts court has an agenda to “radically shift American law,” said Thomas C. Goldstein, a student of the court who argues there often.

So the Chief Justice has a long time to be there…he’s thinking about his future on the court.  Maybe there’s more politics to judicial law making than we give it credit?

Scalia has no such compunctions.  At 71, (though I don’t think he was much different twenty years ago) he’s preparing for the next case, now:

“I look at it as a bit of a kabuki dance,” said Professor Garnett, who clerked for Chief Justice Rehnquist and is close to the court’s conservatives. He said he had no doubt that Justice Scalia had “huge respect for the new chief as a person and as a lawyer.”

What is visible now, he said, is the latest iteration of the endless struggle between the need for stability in the law and the desire to correct previous mistakes.

“Different people who call themselves conservatives resolve that tension in different ways,” Professor Garnett said, adding that Justice Scalia was “laying down markers, making sure the arguments are out there to be used in later cases.”

Orthogonal: or “SCOTUS learns a new word.”

Orthogonal.  As in:  Professor Richard Friedman’s direction became orthogonal during his oral arguments before the Supreme Court last week. The newest word to enter the Supreme Court lexicon made its appearance when the before mentioned professor stated:

“I think that issue is entirely orthogonal to the issue here.”

If you think a sesquipedalian is going to drop a ten-dollar word  like that and just slip by the Justices, then you, like Friedman, have another think coming.  Chief Justice Roberts was the first to stop him.

“I’m sorry. Entirely what?” asked Roberts.

“Orthogonal,” Friedman replied. “Right angle. Unrelated. Irrelevant.”

As if that was enough, Justice Scalia wanted to add it to his repertoire, as well.  As the ABA Journal reported:

“What was that adjective? I liked that,” [Scalia] said.

“I think we should use that in the opinion,” Scalia later added. “Or the dissent,” said Roberts.