Legal News

Justice Scalia: I Want to Apologize . . .

By Dan Slater

Justice Scalia expressed some contrition at the High Court yesterday.

In Bell v. Kelly, a case that involves an ineffective assistance of counsel claim under the Antiterrorism and Effective Death Penalty Act, Scalia questioned petitioner’s counsel Richard P. Bress about the relevant section of the statute, 28 U.S.C. Section 2254(d). But Scalia, according to this report in Law.com report, couldn’t find the text.

“Mr. Bress, this case involves Section 2254(d), right? Does that appear somewhere in the briefs? It would be nice to have it in front of me,” Scalia said.

“Yes, Your Honor,” Bress replied.

“I mean, it’s a central thing the case is about. I cannot find it in any of the briefs,” Scalia said. “Don’t you think it’s important enough to be in your brief?”

After a moment of silence, Bress simply resumed his argument. And by the end of argument, Scalia determined he’d made a mistake. After Bress concluded his rebuttal, but before the chief justice declared the case submitted to the Court, Scalia jumped in.

“Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief. You indeed did,” he said.

“Well, thank you, Your Honor,” Bress responded.

“I’m grateful for your not throwing it in my teeth,” said Scalia.

Full post as published by Law Blog - WSJ.com on November 14, 2008 (boomark / email).