Academic

Justice Antonin Scalia gives an interview with the WSJ Blog (see here, here, and here) to discuss his book, Making Your Case: The Art of Persuading Judges. Here’s the Q&A that prompts the post title:

In the section entitled ?Know your audience,? you urge advocates to learn as much as they can about the judge who will decide the case ? from what entities they represented as a lawyer, to their favorite restaurant. For a litigator arguing before the Supreme Court, what?s important to know about Justice Scalia?

Oh my. Well, I was a law professor, so I?m not scared by abstract academic ideas. I was in the government, and I am aware of both the benefits and the costs of federal agencies. I was the head of the Office of Legal Counsel, which is really the paladin of presidential prerogative. So Scalia probably cares about observing the separation of powers.

He then goes on to discuss his favorite restaurants in the DC area. Undoubtedly, the follow up question should have been - why should advocates know as much as possible about the judge deciding the case? Actually, this is asked, but not really answered (see below).  If it’s just about the law, then it probably shouldn’t matter who decides the case. If case decision making has something to do with personal preferences and world views, then I suppose such knowledge might be valuable for an advocate. I imagine that Scalia goes into more detail on this point in the book - I’ll admit, I’m intrigued to see what he says.

Here are some more interesting Q&A snippets:

Sounds delicious. But tell me, why is it so important to know the background of a judge, but not important to know the background of a statute? You famously spurn any use of legislative history.

Oh it is important to know the background of a statute if you?re speaking to a judge that uses legislative history. I?m not that judge. I?m giving advice to lawyers. Your job is to do whatever you can within proper ethics to persuade this particular judge.

Do you view the judicial dissent as a form of advocacy?

Yeah, in a way. I?m advocating for the future. Who do you think I?m writing my dissents for? I?m writing for the next generation and for law students. You know, read this and see if you want to go down that road. We?d be better off on all sorts of issues ? on legislative history, on originalism. But I?m not going to persuade my colleagues and I?m not going to persuade most of the federal bench. They?ve had this so-called living Constitution stuff, you know, from the time they were in law school. That?s not going to change. But maybe the next generation will see the advantages of going back to the way we used to do things.

There are not too many useful reasons to write a dissent, in this court anyway. Given the chance you have of persuading your colleagues, you should just go quietly. If you could just join the majority and say, ?Justice Scalia dissents,? that?d make my life a lot simpler.

If a lawyer commits some egregious behavior during oral argument is it hard to rule in his client?s favor?

You get used to it. You might have to rule for him because the law is in his favor, but you know he?s going to go back and tell his client, ?Sam, we did it for you again.? Even though the fact is that this guy won in spite of his lawyer. I wish you could give two grades ? who wins the case and who?s the better lawyer.