Kannon Shanmugam interviews Justice Scalia in Appellate Issues. It is an exemplary interview.
Here are a few highlights.
Scalia wanted to be SG, but was beat out by Rex Lee (father of Senator Mike Lee):
The job he really wanted was Solicitor General of the United States. “Sometimes I tell my clerks, when one door closes, another opens.” When Ronald Reagan was elected President in 1980 and was looking for a Solicitor General, Justice Scalia was one of three candidates in the running, along with Rex Lee and Dallin Oaks. Dallin Oaks dropped out. He conceded that “Rex Lee was one heck of a litigator. But I thought they’d want an academic type.” After he interviewed, he missed the first call from the Attorney General, but the next day, the Attorney General reached him during breakfast to tell him he was not selected.
Scalia notes that “conferences” are really a misnomer.
The Supreme Court Justices have “conferences,” but that is really a misnomer. There is no crosspersuasion. The justices just go around the table and explain how they see the case and how they will vote. Not until they get to the last justice can one justice comment on another’s views. But even then, it still is not an exercise in persuading others. Each justice pretty much has his or her mind made up, and it rarely changes. The experience has defied his image of the great appellate judge. He imagines Learned Hand taking his fellow judges to his cottage, sitting and talking about the cases, while they sip bourbon.
Not a fan of the Federal Circuit.
What cases should the Court hear more of? “Easy cases,” said Justice Scalia, half-joking. “I am not one for prowling around for cases I want to take.” His current colleagues don’t seem to do that either, he says. They take them as they come. If there is no circuit conflict, the court almost certainly will not take the case. That is why he thinks the Federal Circuit is a problem. Justice Scalia does not like specialized courts. In every other jurisdiction, he sees the significant issues that need attention; good judges disagree. But the Federal Circuit has exclusive jurisdiction over patents, “and I don’t know squat about patents.” How is he to know which patent cases to take? “Lawyers always say ‘this is a significant departure.’ You can’t believe the lawyers.”
Scalia’s legacy is Crawford v. Washington, not District of Columbia–alas both opinions may be slowly on the way out.
According to Justice Scalia, his legacy case is Crawford v. Washington, 541 U.S. 36 (2004), where the Court overruled an earlier decision that had eviscerated the Confrontation Clause. The Court had held that all the clause means is that hearsay has to bear indicia of reliability. “We overruled it,” he said. “We said that the only true indicium of reliability is confrontation.” It was a 5-4 decision, Justice Scalia wrote the opinion, and he acknowledged that not everyone on the current Court likes it.
What happens before arguments?
To prepare for oral argument, Justice Scalia first reads the briefs. The clerks tell him which ones are significant. Most are not. Many lawyers do not write to raise a new point. They write to show they are in there pitching for their clients. He does not read every amicus. He will read the ACLU’s amicus in a civil liberties case. He will read the AFL-CIO’s amicus in a labor case. And he will read the amicus briefs of some lawyers whose skills he respects. He generally does not discuss the case with law clerks or colleagues before oral argument. After the oral argument and before conference, he will discuss it with his law clerks, but not colleagues. He spends a lot of time kicking it back and forth with his clerks. They’ll spend one and a half hours on some of the more difficult cases. He actually hopes the law clerks will disagree with him. The discussion is useless if they do not. When he comes to an agreement with his clerks—“which means when I make up my mind”—the clerks draft a statement to refresh his recollection during the conference.
What about when an opinion “won’t write.”
There have been instances where the law clerks changed his mind. In one instance, the clerk came to him and said “the opinion just won’t write.” The clerk persuaded him that the majority was wrong. He had the clerk write it the other way. And, sure enough, the majority agreed.
And Scalia likes writing separately–it makes impeachments easier. It is what Jefferson would have wanted.
In English high courts, each judge wrote his own opinion. Justice Scalia noted that we are the only country in the world where there is a signed opinion joined by other justices. “It gives the opinion some life.” Chief Justice Marshall introduced that practice, and President Thomas Jefferson was against it. “Jefferson thought, ‘They should all write their own opinions so we’ll know whom to impeach!’” Justice Scalia admitted there was some merit to that. With a signed opinion that other justices join, you can hold the justices accountable. He does not join if he does not think it is right. “That way, you can see if I’m inconsistent. It’s good that judges be accountable in that fashion.”
The interview is worth reading in its entirety.
H/T How Appealing