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Antonin Scalia

The “Evangelist for originalism”

Justice Antonin Scalia’s “60 Minutes” interview to promote his upcoming book “Making Your Case: The Art of Persuading Judges” turned into a full-fledged profile of the justice, a piece Lesley Stahl called Scalia’s “first major television interview.”

The piece touched on some things we’ve heard Scalia talk about before – things that have been mentioned on this blog – such as his aversion to the “living Constitution” school of thought and his thoughts on torture. But Scalia – who admitted to being a “shin kicker” at times – revealed some new and interesting things as well, including his thoughts about those who call him things like a “fascist” or “evil.”

“These are people who don’t understand what my interpretive philosophy is,” Scalia said.

As far as those who call him “counterrevolutionary,” Scalia said: “Sounds exciting!”

When asked what his judicial philosophy is, Scalia – who has been called an “Evangelist for originalism” – explained: “I’m a law and order guy. I confess I’m a social conservative. But it does not affect my views on cases. The abortion thing, for example. If indeed I were trying to impose my own views, I would not only be opposed to Roe v. Wade. I would be in favor of the opposite view, which the anti-abortion people would like adopted, which is to interpret the Constitution to mean that a state must prohibit abortion.”

“And you’re against that?” Stahl asked.

“Of course! There is nothing there on that subject” in the Constitution, Scalia explained.

“They didn’t write about that,” Stahl continued.

“They did not write about that,” Scalia said.

Here are some more memorable parts of the profile:

Scalia on his friendship with liberal Justice Ruth Bader Ginsburg: “I attack ideas, I don’t attack people. And some very good people have some every bad ideas. And if you can’t separate the two, you gotta get another day job. You don’t want to be a judge.”

On being tough on the bench during oral arguments: “Look, if you just let counsel stand there and talk, he’s just going to regurgitate his brief. I’ve read his brief. I’ve underlined significant passages. I’ve written nonsense in the margins. I want him to tell me why this isn’t nonsense.”

On being an obedient student in Queens, New York who got all A’s and was rarely absent: “I was a greasy grind. I worked really hard. My father, my mother put me to that. And I enjoyed that – I don’t like doing anything badly.”

On giving thought to becoming a priest: “I decided He was not calling me.”

On the influence his Catholic faith has on his job: “It has nothing to do with how I decide cases. My job is to interpret the Constitution accurately. And indeed there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection under the laws, I think that clearly means walking around persons. We don’t count pregnant women twice.”

On the pride Italian Americans felt when he was confirmed to the Court: “I think the reason is they have this Mafioso thing hung around their neck. You know, you can have an Italian governor but he can still be a crook. But an Italian Supreme Court justice – that meant a lot to them. It was a sign of integrity, honestly, intellectual accomplishment.”

On having a large family with his wife, Maureen: “Well, we didn’t set out to have nine children. Were just old fashioned Catholics, you know, playing what used to be known as ‘Vatican roulette.'”

On his new book, in response to Stahl’s observation that some of his tips “make it seem like lawyers were imbeciles.”

“You would be surprised,” Scalia said with a laugh.

The “Evangelist for originalism”

Justice Antonin Scalia’s “60 Minutes” interview to promote his upcoming book “Making Your Case: The Art of Persuading Judges” turned into a full-fledged profile of the justice, a piece Lesley Stahl called Scalia’s “first major television interview.”

The piece touched on some things we’ve heard Scalia talk about before – things that have been mentioned on this blog – such as his aversion to the “living Constitution” school of thought and his thoughts on torture. But Scalia – who admitted to being a “shin kicker” at times – revealed some new and interesting things as well, including his thoughts about those who call him things like a “fascist” or “evil.”

“These are people who don’t understand what my interpretive philosophy is,” Scalia said.

As far as those who call him “counterrevolutionary,” Scalia said: “Sounds exciting!”

When asked what his judicial philosophy is, Scalia – who has been called an “Evangelist for originalism” – explained: “I’m a law and order guy. I confess I’m a social conservative. But it does not affect my views on cases. The abortion thing, for example. If indeed I were trying to impose my own views, I would not only be opposed to Roe v. Wade. I would be in favor of the opposite view, which the anti-abortion people would like adopted, which is to interpret the Constitution to mean that a state must prohibit abortion.”

“And you’re against that?” Stahl asked.

“Of course! There is nothing there on that subject” in the Constitution, Scalia explained.

“They didn’t write about that,” Stahl continued.

“They did not write about that,” Scalia said.

Here are some more memorable parts of the profile:

Scalia on his friendship with liberal Justice Ruth Bader Ginsburg: “I attack ideas, I don’t attack people. And some very good people have some every bad ideas. And if you can’t separate the two, you gotta get another day job. You don’t want to be a judge.”

On being tough on the bench during oral arguments: “Look, if you just let counsel stand there and talk, he’s just going to regurgitate his brief. I’ve read his brief. I’ve underlined significant passages. I’ve written nonsense in the margins. I want him to tell me why this isn’t nonsense.”

On being an obedient student in Queens, New York who got all A’s and was rarely absent: “I was a greasy grind. I worked really hard. My father, my mother put me to that. And I enjoyed that – I don’t like doing anything badly.”

On giving thought to becoming a priest: “I decided He was not calling me.”

On the influence his Catholic faith has on his job: “It has nothing to do with how I decide cases. My job is to interpret the Constitution accurately. And indeed there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection under the laws, I think that clearly means walking around persons. We don’t count pregnant women twice.”

On the pride Italian Americans felt when he was confirmed to the Court: “I think the reason is they have this Mafioso thing hung around their neck. You know, you can have an Italian governor but he can still be a crook. But an Italian Supreme Court justice – that meant a lot to them. It was a sign of integrity, honestly, intellectual accomplishment.”

On having a large family with his wife, Maureen: “Well, we didn’t set out to have nine children. Were just old fashioned Catholics, you know, playing what used to be known as ‘Vatican roulette.'”

On his new book, in response to Stahl’s observation that some of his tips “make it seem like lawyers were imbeciles.”

“You would be surprised,” Scalia said with a laugh.

Friday morning docket: Scalia speaks!

With oral arguments behind them, it’s crunch time for the justices of the Supreme Court, who still have many cases to decide before the term ends. They meet in conference today. And DC Dicta was remiss not to mention Justice John Paul Stevens’s birthday in last week’s docket. Stevens turned the spry young age of 88 last weekend. Only Justice Oliver Wendell Holmes graced the bench at an older age – he served until he was 90.

Meanwhile:

Are you still sore about the Supreme Court’s role in the 2000 presidential election? Justice Antonin Scalia has a message for you: “Get over it. It’s so old by now.” You can see his full “60 Minutes” interview with Lesley Stahl this Sunday, but here’s a preview:

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The very last oral argument case this term involved the question of what happens in an age discrimination claim when the evidence offered by the employer and employee results in a tie for the factfinder. Well, it looks like the recusal of Justice Stephen Breyer could mean the Court itself could end up in a tie. (ABA Journal)

An invitation to Justice Clarence Thomas to speak at the commencement ceremony at the University of Georgia has sparked controversy. Some students and faculty called the invitation inappropriate given recent problems with claims of sexual harassment as the school. But the school’s president stands by his choice and the Atlanta Journal Constitution agrees. (U.S. News; AJC)

President Bush is less than thrilled with Democratic lawmakers’ housing relief plans. (AP)

The government’s plan to crack down on illegal workers could cost employers more than $1 billion a year and legal workers billions in lost wages, a study commissioned by the U.S. Chamber of Commerce says. (AP)

’60 Minutes’ with Scalia

He is not a fan of the media, but Justice Antonin Scalia will be featured on “60 Minutes” later this month to promote his new book.

The Associated Press reports that Scalia, who once banned broadcast media from covering his acceptance of an award for supporting free speech, has already been interviewed by Lesley Stahl at the Supreme Court.

He will be talking aout his upcoming book “Making Your Case: The Art of Persuading Judges,” co-written by legal writing expert Bryan Garner. And knowing how Scalia is, he’ll probably be talking about other things too – like perhaps his feelings about justices who speak to the news media.

“It has been the tradition of the American judiciary not to thrust themselves into the public eye, where they might come to be regarded as politicians seeking public favor,” he said in an apology to two reporters who were forced to erase their tapes following a Scalia speech in Hattiesburg, Miss.

’60 Minutes’ with Scalia

He is not a fan of the media, but Justice Antonin Scalia will be featured on “60 Minutes” later this month to promote his new book.

The Associated Press reports that Scalia, who once banned broadcast media from covering his acceptance of an award for supporting free speech, has already been interviewed by Lesley Stahl at the Supreme Court.

He will be talking aout his upcoming book “Making Your Case: The Art of Persuading Judges,” co-written by legal writing expert Bryan Garner. And knowing how Scalia is, he’ll probably be talking about other things too – like perhaps his feelings about justices who speak to the news media.

“It has been the tradition of the American judiciary not to thrust themselves into the public eye, where they might come to be regarded as politicians seeking public favor,” he said in an apology to two reporters who were forced to erase their tapes following a Scalia speech in Hattiesburg, Miss.

The Supremes, unplugged

Has your case been granted cert by the Supreme Court? Well, congrats — but before you write a word of your brief or prep for oral argument, you’d better check one website that will help you out more than unshakable legal precedent on your side.

Tony Mauro at Legal Times found a website featuring video footage of eight of the nine Supreme Court justices very candidly speaking – often griping – about their appellate advocacy pet peeves. And they make for good watching, even if you aren’t preparing to argue before the high court.

The videos are the product of Bryan Garner, legal writing specialist who sat down and videotaped each justice [except for Justice David Souter, who declined to chat on tape] as they candidly gave their views – as well as an insight into their personalities.

We already knew Justice Antonin Scalia can get testy if lawyers don’t prepare their briefs properly. But in his video, he unleashes.

For example, speaking about lawyers who respond to hypotheticals by saying “That’s not my case,” Scalia snipes: “Boy, no. I mark it down. Absolutely, absolutely. I would rule against it if I could, just on [that point.] No, if I had to grade advocates in addition to deciding the case, what you would really get a ‘C’ for is saying that is not this case.”

And don’t make a verb by tacking an “-ize” on the end of a noun if you want to get Justice Anthony Kennedy – a crucial swing voter – on your side. Such a linguistic trick is “like wearing a very ugly cravat,” he said.

Scalia eschews the argument summaries in briefs, but don’t leave them out if you go before the Court. Justice Clarence Thomas loves them. They are “like giving you, you know, what’s going to be on TV next week.”

You can watch all of the videos – we sure will – on the website of LawProse, Inc. DC Dicta will round up a choice sample of quotes from the justices here later on.

Scalia: ‘Constitution does not morph’

Just in case anyone was unclear about Justice Antonin Scalia’s views about whether the Constitution “lives,” he made himself perfectly clear last night during a speech at the University of Central Missouri.

“The Constitution is not a living organism,” Scalia said, reports the Kansas City Star. “It’s a legal document that says some things and doesn’t say others.”

“The Constitution does not change,” Scalia said. “It means today what it meant when it first was written. … It does not morph.”

He eschewed the idea of a “living Constitution,” saying that changing the document’s interpretation to fit the time would lead to the erosion of the rights specifically enumerated by the Founding Fathers.

“It will produce what the society at the time likes,” Scalia said. “Sometimes it will grant some rights. Other times it will take some away.”

Of course his address was not without humor. The Court’s funniest justice by far (according from our unscientific tally) had this to say when asked which member of the Court, living or dead, he’d like to dine with: “I have dinner with Ruth (Bader Ginsberg) once a year, and I certainly wouldn’t want to have dinner with a dead man.”

Scalia: ‘Constitution does not morph’

Just in case anyone was unclear about Justice Antonin Scalia’s views about whether the Constitution “lives,” he made himself perfectly clear last night during a speech at the University of Central Missouri.

“The Constitution is not a living organism,” Scalia said, reports the Kansas City Star. “It’s a legal document that says some things and doesn’t say others.”

“The Constitution does not change,” Scalia said. “It means today what it meant when it first was written. … It does not morph.”

He eschewed the idea of a “living Constitution,” saying that changing the document’s interpretation to fit the time would lead to the erosion of the rights specifically enumerated by the Founding Fathers.

“It will produce what the society at the time likes,” Scalia said. “Sometimes it will grant some rights. Other times it will take some away.”

Of course his address was not without humor. The Court’s funniest justice by far (according from our unscientific tally) had this to say when asked which member of the Court, living or dead, he’d like to dine with: “I have dinner with Ruth (Bader Ginsberg) once a year, and I certainly wouldn’t want to have dinner with a dead man.”

Scalia’s lessons of appellate advocacy

We know Justice Antonin Scalia is writing a book that is essentially a “how to” manual on appellate advocacy.

Perhaps one of the chapters will be titled, “Make sure you put all relevant information about your case in your brief.”

That may sound self evident. But just days after an attorney miffed the justice for not including relevant statutory language in his brief, today an attorney hinted during oral argument that the Court may have improvidently granted review of the case – something he maybe should have mentioned in his brief.

Let’s back up – the case, Allison Engine Co. v. U.S. Ex Rel. Sanders, No. 07-214, stems from a qui tam action brought under the False Claims Act by whistleblowers against a subcontractor to a company building guided-missile destroyers for the Navy. The project was federally funded.

The whistleblowers alleged that the company submitted invoices for payment even though the work did not meet contractual or Navy requirements. The invoices were submitted to the contractor – not the government – but the whistleblowers contend that an invoice seeking federal funds, even if not submitted to the government, qualifies under the Act. The subcontractor contends that it does not.

But during the last 15 minutes of oral argument, James B. Helmer, Jr., the attorney representing the whistleblowers, caused a stir when he claimed that certificates of conformity were sent to the Navy – something that would have clearly fallen under the Act, rendering the Supreme Court’s review of the case unnecessary.

“Allison was required . . . to give a certificate of conformance that all of these rigid requirements had been satisfied, and that certificate of conformance had to be given to the United States Navy,” Helmer said.

“I thought it was not established that anything from this defendant got to the Navy,” said Justice Antonin Scalia.

“You were told that earlier this morning [by opposing counsel], Your Honor,” Helmer said. “I don’t believe that’s correct.”

“Well, then there’s less to this case than we had thought,” Scalia said. “My goodness, even under the Petitioner’s theory, you win . . . What is all this fuss about, then?”

“This case is not an outlier on the ends of this statute,” Helmer said. “It is squarely in the middle.”

Then came the lesson. “I wish you had said that in your brief, because we could have saved ourselves a lot of reading,” Scalia said to Helmer.

“Your Honor, anything that I can do to help the Court,” Helmer said. “I apologize if I didn’t write the brief better than I could have.”

Scalia’s lessons of appellate advocacy

We know Justice Antonin Scalia is writing a book that is essentially a “how to” manual on appellate advocacy.

Perhaps one of the chapters will be titled, “Make sure you put all relevant information about your case in your brief.”

That may sound self evident. But just days after an attorney miffed the justice for not including relevant statutory language in his brief, today an attorney hinted during oral argument that the Court may have improvidently granted review of the case – something he maybe should have mentioned in his brief.

Let’s back up – the case, Allison Engine Co. v. U.S. Ex Rel. Sanders, No. 07-214, stems from a qui tam action brought under the False Claims Act by whistleblowers against a subcontractor to a company building guided-missile destroyers for the Navy. The project was federally funded.

The whistleblowers alleged that the company submitted invoices for payment even though the work did not meet contractual or Navy requirements. The invoices were submitted to the contractor – not the government – but the whistleblowers contend that an invoice seeking federal funds, even if not submitted to the government, qualifies under the Act. The subcontractor contends that it does not.

But during the last 15 minutes of oral argument, James B. Helmer, Jr., the attorney representing the whistleblowers, caused a stir when he claimed that certificates of conformity were sent to the Navy – something that would have clearly fallen under the Act, rendering the Supreme Court’s review of the case unnecessary.

“Allison was required . . . to give a certificate of conformance that all of these rigid requirements had been satisfied, and that certificate of conformance had to be given to the United States Navy,” Helmer said.

“I thought it was not established that anything from this defendant got to the Navy,” said Justice Antonin Scalia.

“You were told that earlier this morning [by opposing counsel], Your Honor,” Helmer said. “I don’t believe that’s correct.”

“Well, then there’s less to this case than we had thought,” Scalia said. “My goodness, even under the Petitioner’s theory, you win . . . What is all this fuss about, then?”

“This case is not an outlier on the ends of this statute,” Helmer said. “It is squarely in the middle.”

Then came the lesson. “I wish you had said that in your brief, because we could have saved ourselves a lot of reading,” Scalia said to Helmer.

“Your Honor, anything that I can do to help the Court,” Helmer said. “I apologize if I didn’t write the brief better than I could have.”