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Missing statute peeves Scalia

Note to all attorneys preparing to argue before Justice Antonin Scalia and the rest of the justices of the Supreme Court: if you are going to bring up a statute in your argument, you’d better make sure you include the language of that statute in your brief.

An attorney who failed to adhere to that rule seemed to irk Scalia this morning.

Washington D.C. attorney Joseph R. Guerra, arguing on behalf of a postal employee seeking the right to sue her supervisor for retaliation under the Age Discrimination in Employment Act in the case Gomez-Perez v. Potter, sought to compare that statute’s language to that of Title VII.

“Where is this stuff?” Scalia interjected. “Where is this text that we’re talking about?”

“I apologize, Justice Scalia,” Guerra said. “It is not in-”

“It’s not in your brief,” Scalia said, finishing Guerra’s sentence for him. “It’s not in the appendix. So I don’t know what you’re talking about.”

Guerra tried to clarify. “I am talking about subsection (c) of 717a, the federal sector provisions of Title VII.”

“Which we don’t have here now,” Scalia persisted.

If Guerra thought that was the end of it, he was wrong.

[More after the jump]

During opposing counsel Deputy Solicitor General Gregory G. Garre’s argument, Scalia, clearly still peeved by the missing statutory text, asked if the court would have to decide the same issue with respect to Title VII in order to reach a decision on the ADEA.

“Mr. Garre, are we going to have to decide the Title VII question in this case?” Scalia asked. “We don’t even have the materials in front of us. They haven’t been put in the appendix to the briefs. And in order to decide this case, we’re going to have to decide a Title VII case that hasn’t even been presented?”

“The Court does not have to decide the” Title VII question, Garre said.

But wait, there’s more! When Guerra returned to use his remaining rebuttal time, Chief Justice John G. Roberts, Jr. put the same question to him.

“So you think we do have to decide the Title VII question if you are to prevail,” Roberts asked.

“I do,” Guerra replied. “Well, I don’t know that you necessarily do, but I certainly think it compels the conclusion I am advocating if you reach the issue.”

Without missing a beat, Scalia said: “You should have given us the statute to look at if that’s the case.”

” I recognize that, Justice Scalia,” Guerra replied, “and I apologize.”

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