Jan 17, 2014

Posted in Uncategorized

More on Justice Scalia’s “Dick Move”

My post on Justice Scalia interrupting Steven Lechner from Marvin M. Brandt Revocable Trust v. United States  has been one of my most popular recent posts. In short, I faulted Scalia for interrupting a first-time lawyer before the Court, who was apparently reading from notes (I haven’t heard from anyone who had a direct line of sight of the lectern).

Scalia said, “Counsel, you are not reading this, are you?” I called this a “dick move.” In three days the post has received nearly 3,000 views, has been republished by Business Insider (which got 6,500 views), spurred an article by Tony Mauro in BLT, the ABA JournalAboveTheLawMother Jones (for once Kevin Drum agrees with me), Simple Justice (for once Scott agrees with Joe Patrice but as usual disagrees with me), been tweeted nearly 100 times, received over 170 “likes” on Facebook, and lots more emails. The verdict was mixed. Some say Scalia was being a jerk for chewing out the lawyer. Others said this lawyer was in the big league, and should not have been reading, and Scalia was entirely justified with his comment.

I’ve avoided responding here because I wanted to listen to the audio to gain the context (as best as possible without video). You can do so here, and judge for yourself. The magic starts around 1:10. At 1:20 Scalia jumps in. There is a solid six seconds of awkward silence (about the same length Solicitor General Verrilli was silent when he chocked on the tragic sip of water during oral arguments in NFIB). Then at 1:28 Justice Breyer says “it’s all right,” with some awkward laughter. Three more seconds of uncomfortable silence. At 1:33, the lawyer resumes his presentation–presumably not reading–and continues his argument. As an aside, he did a decent job. In fact, as pointed out in the article by Mauro, the Deputy Solicitor General was consistently unable to answer a key question from the Justices–how much land would an adverse ruling for the government impact. As a property scholar, this case was a treat (Scalia and Breyer also talked about their property studies at HLS).

But anyway, back to the dick move. Although not quite a legal term of art (yet), as I understand it (and Urban Dictionary largely confirms with more vulgarity), this refers to something a person does, which is even uncharacteristically for him, a bad thing to do, that  makes life more difficult for others.

I was fortunate enough to clerk for two judges who were always gracious to counsel, though I am not unfamiliar with the idea of judges being mean to lawyers. What I found out of the ordinary in this case was that Scalia would take the occasion to chew out a first-time advocate when it was totally unnecessary. If he wanted to stop him from reading, Scalia could’ve done what he usually does: ask a question! The transcript shows that he asked about 18 questions. That would’ve been the easy way. No. Instead, Scalia went out of his way to demean the lawyer, for no purpose other than making him look unprepared.

And to what end? To deter him from reading? As soon as the first question was asked, the lawyer went off script and engaged in a colloquy. To make sure he doesn’t do it next time? For better or worse (I think latter), first-time advocates seldom get a return trip to One First Street. The Supreme Court Bar has, in recent years, monopolized arguments. Incidents like this will reaffirm this preference. Maybe Scalia was making sure everyone knew the rules? Like using a bazooka to swat a fly. The Federal Rules of Appellate Procedure, as well as the Supreme Court’s guide to oral argument strongly counsel against reading. Any first year law student who did a moot court knows not to read before any judge. I’m positive that someone mooted the lawyer, and would have told him not to read. But maybe this lawyer got nervous? Maybe he stumbled?

Maybe he was looking at his notes to refresh his memory but not reading from memory? (Again, I haven’t heard from anyone who actually saw him reading–the viewing angles are terrible in the chamber). Who knows. It happens. We’ve all made a mistake.  Though, not usually before the Supreme Court (Remember Verilli choking before the 9–big no-no). And Scalia knows how to help an advocate. I was in the Court for McDonald v. Chicago when he counseled Alan Gura to slow down (before he outright rejected Alan’s arguments about the Privileges or Immunities clause). [Update: Scalia told Gura to slow down in Heller, not McDonald. My apologies, my memory failed me]. Did the lawyer do an effective job? Yeah. I thought on the merits his argument was decent, and he cornered the government on some pretty technical property issues. Should he have read from the lectern? Absolutely not.

Scalia is often a bully to the pulpit, though he should reserve his acrimony for arguments, not advocates.

In any event, I am glad that I have successfully incorporated the phrase “dick move” into legal discourse.

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