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May 4, 2008
Justice Antonin Scalia
U.S. Supreme Court
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Info: Justice Antonin Scalia joins us to discuss his new book, "Making Your Case: The Art of Persuading Judges" which he wrote with Bryan Garner. The book gives advice to lawyers on presenting oral arguments.

Uncorrected transcript provided by Morningside Partners.
C-SPAN uses its best efforts to provide accurate transcripts of its programs, but it can not be held liable for mistakes such as omitted words, punctuation, spelling, mistakes that change meaning, etc.

BRIAN LAMB: Justice Antonin Scalia, why a book called, ”Making Your Case”?

ANTONIN SCALIA, U.S. SUPREME COURT JUSTICE: Why? I think for the reason that most people write nonfiction books, to convey information that they possess, which others may not possess and which they think is useful.

LAMB: So what’s the subject? What’s the purpose?

SCALIA: The purpose is to enable lawyers to be better lawyers, in briefs that they present to courts and in oral argument.

LAMB: One of the things you do in the book is you have, and I counted something like 63 quotes from others …

SCALIA: Oh, those little boxes? Yes. Yes.

LAMB: I pulled a bunch out.


LAMB: Cicero said, ”In everything, monotony is the mother of boredom.”

SCALIA: Yes. It’s a good line.

LAMB: Why is it a good line?

SCALIA: Because it’s so true. You have to realize judges do not have as, what should I say, diverse a life as practicing lawyers who one day are talking to a client, the next day they’re speaking to a federal agency, the next day they’re before a court, the next day they’re writing a brief. Judges read briefs, listen to oral argument, write the opinion, at least appellate judges, read briefs, listen to the argument. It is important to make that repetitive process as interesting as possible, and monotony is – you certainly never, never I, but some judges might – may nod as they read through monotonous – and of course, one thing that really produces monotony is verbosity, saying things in much – at much greater length than the subject requires.

LAMB: The Honorable Alex Kozinski, another judge, says this, and I quote, ”When judges see a lot of words, they immediately think loser, loser.

SCALIA: Makes sense.

LAMB: You might as well write it in big, bold letters on the cover of your brief.

SCALIA: Makes sense.

LAMB: What’s the purpose of that, though?

SCALIA: Well, that – that’s typically colorful Alex Kozinski. The purpose of that quote is it’s in the section on get to the point and be brief. The worst briefs are the most verbose briefs, and the best briefs are those that stop when the subject’s been adequately covered.

LAMB: How – is there a restriction on how long a brief can be?

SCALIA: Yes. And some lawyers think that they haven’t really done their job unless they come right up to the page limit. In the Supreme Court it’s 60 pages for the principal briefs, and the petitioner gets a reply brief of 40 pages.

And there are some lawyers, indeed, I might say most lawyers, who will go right up to the 60-page limit, and if they haven’t made it when they finish their writing, they’ll think of another point to put in.

As we point out in the book, that is not smart. The – you acquire a reputation before a court that you appear before with any regularity, and there are some lawyers whose briefs I will read with much more care because I know when they’re really done with the subject they will stop, the brief will come in at 40 pages if – instead of 60, if that’s all that the subject demands, and it’s good to acquire that kind of a reputation. This is not a lawyer who wastes my time.

If it is a lawyer that wastes your time, you tend to read more rapidly, you know. You think there’s a lot of fluff in there, and the – let’s get on to the next point.

LAMB: In this current year that’s just ending, you had 75 cases that were argued before the court. How many of the briefs did you read before each of those …

SCALIA: Oh, I read all of them, all the parties’ briefs before argument.

LAMB: Complete?

SCALIA: Oh, yes. And some, but not all, amicus briefs.

LAMB: What’s amicus brief?

SCALIA: Amicus is a person who is not a party to the case, has no dog in the fight, but sometimes they have a dog in the fight but the case is not going to bind them, and amicus means friend. Amicus curiae is the full terminology, friend of the court, and they come in to help the court, usually on one side or the other. We have like, if I get the colors right, the dark green briefs, amicus briefs are in favor of the petitioner, the light green are in favor of the respondent.

LAMB: This book is 245 pages long, it’s got 115 different chapters. Who was your co-author?

SCALIA: My co-author is a prominent figure in legal circles. He – Bryan Garner is his name. He’s the editor of ”Blacks Law Dictionary”, which is sort of the bible of dictionaries for the law. He has also written extensively on subjects of this sort. He has a book on brief writing. He has a book on legal terminology, American legal usage, and he conducts seminars with some regularity for lawyers, usually sponsored by their law firms, on how to write briefs and how to conduct oral argument.

LAMB: We have an excerpt from an oral argument earlier this year. I think it was in January. It’s the Boumediene case. I don’t think you’ve decided it yet or …

SCALIA: No, we’ve not.

LAMB: … just haven’t announced it.

SCALIA: We have not.

LAMB: The only reason we’re running this is to hear you interact with Seth Waxman, who was previously Solicitor General.

SCALIA: He was SG and …

LAMB: Roughly, how many times do – can you remember Seth Waxman being in front of you?

SCALIA: Oh, many times. There are not that many lawyers who appear with any regularity before the Supreme Court. Most of those that do are – happen to be former solicitors general. Seth Waxman is one. Oh, I don’t know, at least 10, 15 times, something like that. Maybe even more.

LAMB: Let’s listen to this excerpt. Just playing it so we can hear you interact with him.


SETH WAXMAN: But in showing…

SCALIA: What cases – what cases in particular do you think in Rasul?

WAXMAN: I think the opinion of two of the three law lords in the Earl of Crewe which the majority cited as In re Sekgome. It is certain the government can concedes it was the case in Mwenya. It was true in the Indian cases, and in fact, as we point out …

SCALIA: Mwenya involved an English—an English subject, not an alien

WAXMAN : Indeed it did, and the government --

SCALIA: So its totally irrelevant.

WAXMAN : Well, no. Let me take a shot at convincing you that it’s not totally irrelevant. The Crown Counsel in that case in his brief stated forthrightly that subjecthood or citizenship didn’t matter, and in fact, in the very minority that the government relies on in its brief here in Earl of Crewe, Lord Justice Kennedy specifically said that the citizenship is irrelevant. It isn’t and wasn’t …

SCALIA: In both of those cases, it was a citizen nonetheless. In 220 years of our history, or five centuries of the (INAUDIBLE) you have a single case in which it was not a citizen of England or a citizen of the United States in which a common law writ of habeas corpus issued to a piece of land that was not within the sovereign jurisdiction.

WAXMAN : Well, the court majority in Rasul cites a case involving the Isle of Jersey, the Channel Islands, none of those were within sovereign …

SCALIA: The same ports, they were not regarded as part of the crown’s dominion, but they were part of the crown’s sovereign territory.

WAXMAN : I’ll take one more chance, Justice Scalia …

SCALIA: Okay, try them. I mean, line them up. (LAUGHTER)

WAXMAN: OK. Here they go.


LAMB: How many advocates could stand here this morning and say, ”Let me take a shot.”

SCALIA: I think you have to have been there, I guess, and, you know, I know Seth, and I consider him a friend, you know. I think a novice at the court would probably not be as relaxed, put it that way.

LAMB: And let – one of your – in an interview we did many years ago, you talked about one of your favorite justices being Robert Jackson. You have a quote of his in the book, it’s number 73, that says, ”You will not be stopped from arguing if you wear a racetrack suit or sport a rainbowed necktie. You will just create a first impression that you have strayed into the wrong bar.”

SCALIA: Isn’t he good? That’s why I like Jackson. He is so colorful, just a very good way to put it.

LAMB: So what would you advise somebody that’s stepping in front of your court for the first time? What are – what’s the first thing you see when they begin their arguments?

SCALIA: Well, the first you see is when they’re seated at counsel table before they stand up to argue. If they’re the first person to argue, you expect them to be seated calmly, respectfully, and when they get up, not to get up with a handful of papers that – juggling papers, come with just a, you know, a few notes to put on the podium.

Attire, you know. Clothes make the man or the woman. As Jackson said, you know, you should be dressed conservatively, which means a dark suit, and as we say in the book, dark doesn’t mean brown. That’s not dark brown, but gray, blue, and address the court respectfully but not, what should I say? Not Uriah Heepishly (ph). You’re there to reason with the justices, not to flatter them and not to be subservient.

If you’re not arguing first and you’re seated at counsel table while your opponent is arguing, the first thing to be aware of is to display any reaction to the argument. No pained expression when the opponent comes up with a bad argument or shaking your head to show that you don’t agree with it. None of that is proper in the forum. You just sit there and listen and take notes.

LAMB: Honorable Myron Bright, this is another quote …

SCALIA: Federal judge.

LAMB: Lawyer A, a fine attorney from a recognized Wall Street New York firm, didn’t look the court in the eye once but delivered his entire argument looking down at his notes. Unfortunately for him, the wooden podium casts no vote in the conference.

SCALIA: Yes. It’s surprising how often you find counsel, I mean, that’s rudimentary, for Pete’s sake. Look at the person that you’re addressing, and it’s surprising how many counsel – maybe they’re – you’re – maybe they’re not appellate lawyers. I mean, very often we get a case that is brought by someone who maybe is a trial lawyer and has not had that many appellate arguments, so maybe does not have that much experience arguing before a panel of appellate judges.

But whatever the reason, sometimes, you know, they’re – more often than looking down at the notes, they’ll sort of stare into middle space and just not connect to the justices.

Especially, you know, once upon a time, it might not have mattered so much because it used to be that you would not have an exchange of the sort that you heard on the tape. In the bad old days, and indeed until very recently in England, counsel would just be allowed to go on and on.

Now, if we let that happen here, but in those days they didn’t have written briefs beforehand. But I’ve read the briefs beforehand, and I, you know, underlined significant passages and written comments in the margin. If you let the lawyer just rattle on, he’s going to repeat his brief, you know, to no avail.

What you really want to do is probe the points in the brief that you think are the weak points, and see if he can tell you why they are not weak.

Now, if you want to engage in that enterprise, it’s very much a give and take with the court. You have to connect with the judges you’re talking to.

LAMB: Have you ever changed your mind because of an oral argument?

SCALIA: Yes, I would say, but very rarely. Now, what I have done frequently, not at all rarely, is made up my mind during oral argument. Don’t change your mind that often, but there are a lot of cases in which the appellate judge goes in on the knife’s edge. They’re very close cases, especially here at the Supreme Court because we generally do not take a case unless very good lower court federal judges have disagreed on the right answer, one circuit has said one thing, another circuit has said another. The reason we take one or both of those cases is to resolve the right answer for federal law nationwide.

So given that good judges below have disagreed, very often it’s a hard case, and you really haven’t made up your mind when you get into oral arguments.

LAMB: The last time I interviewed you, and I want the audience to know that I’ve known you forever …


LAMB: (INAUDIBLE) 1971 we worked together.

SCALIA: We did.

LAMB: But the last time I interviewed you was 1986, only 22 years ago, so, maybe …

SCALIA: We’ve spoken since then, Brian.

LAMB: But I want you to see what you looked like in 1986 and what you thought of lawyers then.

SCALIA: Right. Right. What did I think of lawyers?


LAMB: What do you think of the average lawyer that stands in front of your court? Is he or she prepared? Do they argue their case well? Are their briefs well filed?

SCALIA: That’s one of the surprises that, you know, I mentioned earlier. I didn’t have many surprises when I came on the court. I’ve been pleasantly surprised, generally speaking, at the caliber of argument.

Again, I’m not sure how typical our court is because by reason of the nature of our business, we have a fairly specialized bar that is those lawyers that are all doing federal energy regulatory commission cases or an expert in specialized bar, those arguing cases from the National Labor Relations Board, the same, those from the Federal Communications Commission.

It’s not a very typical cross-cut of the legal profession, but I’ve been impressed with the quality on both the government and the private side.


LAMB: People rate you all the time as justice. How do you rate lawyers that stand before the bar?

SCALIA: Well, contrary to what was the case when that cut was filmed, I was on the Court of Appeals then, and as I said, the D.C. circuit was a very specialized bar. This court, the Supreme Court, does not have a very specialized bar. A vast majority of cases are argued by lawyers from all around the country who have never appeared before the Supreme Court before, some of whom have probably never appeared before a federal appellate court before, and so I cannot – overall, I think the quality is probably better on the D.C. circuit, but even so, I am all in all more impressed by the quality of the lawyers that appear before us than I am discouraged by their lack of competence.

The former Chief Justice Berger was a severe critic of the bar. He thought that the lawyers that appeared before our court were not at all as good as they ought to be. That really hasn’t been my experience. I’m more – now and then you get somebody who’s really quite bad, but more often I am startled by the fact that this young woman who is a, you know, public defender from Podunk (ph) is so good, is so smart, and is so competent, and I ask myself, ”What is she doing, you know, being a public defender in Podunk (ph)? Why isn’t she out inventing the automobile or, you know, doing something useful?” I mean, I – you know, I’m being sarcastic, I suppose, but it is the fact that we devote, in my view, too many of our best and brightest minds to the law. I wouldn’t like to do anything else. I mean, it’s really what I’m sort of cut out for, but I do think that overall the talent that comes into the law in this country is really an excessive proportion of the talent out there, which says something about the legal system, I suppose, that it’s gotten very complex, it’s gotten – it’s worth paying a lot of money to get the best and the brightest minds.

I’m not sure the system ought to be that way. It ought to be simpler, and we ought to be able to devote a lot of our best minds to like – to teaching, to engineering, to something useful.

Well, you know, lawyers are facilitators. We enable the work of the world to proceed smoothly, and in an atmosphere of freedom, and that’s all very important, but at the end of the day, we don’t have a product. We facilitate actions and activities by other people.

LAMB: Can you think – if you were sitting around with your colleagues talking about lawyers that appeared before your court, can you think of a story of someone that was really bad? You don’t have to name them, of course. Not that you would, but – and what ingredients – did anybody ever make a complete fool of themselves?

SCALIA: Well, I mean, not that they would get booed off the podium, but yes, I think, and when that occurs, it’s not just my impression, it’s the impression of the other justices when we come off the bench, and oh, boy, you know, was that a bad job.

LAMB: But give us an example why you’d say that.

SCALIA: Well, I think the worst thing is a lawyer that does not have clearly in mind the theory of the lawyer’s case, and therefore when the lawyer gets questions, it’s as though, you know, wow, I never thought of that. If you don’t have your theory clearly in mind, every question is, you know, comes out of nowhere, and you’re scrambling for some answer.

That’s probably the greatest substantive fault of appellate counsel, not knowing what the basic theory of their case is.

LAMB: When I saw this on C-SPAN, when you were involved in a discussion with President of the ACLU, I wanted to ask you about this. Let’s roll the tape and get your reaction.


NADINE STROSSEN : Fortunately the Constitution was amended after the Civil War to create equality rights and rights for African Americans and others who had been excluded under the original Constitution, and the Fourteenth Amendment, as you know, Nino , we agreed we would be on a first name basis as we usually are, that you understand and you know that the due process clause of the Fourteenth Amendment has been interpreted by I think you are the sole exception in the modern court …


LAMB: Question is obviously the reference to you as Nino . In a society where so many things, the formality of the society has been torn down, somebody outside looking in says, ”Why would that person call a justice of the Supreme Court by his first name?” And what’s your attitude about that?

SCALIA: Oh, I took no offense at it at all because we are friends, Nadine Strossen , God knows we don’t agree on approaches to the law. Some we do, but, you know, she’s a good friend and I took no offense at it at all. I don’t know why you have been calling me Nino, you know. When we eat a pizza together, you said we don’t …

LAMB: Well, mainly …

SCALIA: … Mr. Justice or …

LAMB: Our …

SCALIA: You don’t show a whole lot of respect all the time, either, but this is a different forum.

LAMB: And actually our style is that never – the familiar style just doesn’t exist. We – it’s always Mister or Justice or whatever. But, you know, a lot of lawyers stand up in front of the court and they just shake, and they’re – and when they’re around anybody in power like that, they are very nervous. Is there too much of that?

SCALIA: There is a happy medium between being sycophantic and being overly familiar.

Now, that’s one of the issues that my co-author and I go at in the book. He recommends, for example, that in the briefs to the court, you use contractions. Don’t, isn’t, aren’t, and so forth, whereas I think that’s a mistake. It is a formal setting. There is a formal English as opposed to an informal English. You wouldn’t expect the Gettysburg Address to have said, you know, we can’t dedicate, we can’t consecrate, we can’t hollow this ground. I mean, you know, we cannot dedicate, we cannot – the formality of not using contractions. I think that’s proper in a court. I don’t expect the language in the court, neither at oral argument nor in the briefs, to be as familiar as the language at the local bar. I mean, it’s a different setting.

But that doesn’t mean that you have to grovel before the judge and say, you know, your honor this and your honor that, and all of that. That’s not the kind of relationship you want to have with the court. You want to have a relationship of equals but understanding that the court has the last word. You’re trying to be helpful to the court, as we put it in the book, as though you’re a junior partner discussing the case with a senior partner.

LAMB: Speaking of familiarity, I found this on the web. It’s from something called the green bag.

SCALIA: Oh, yes.

LAMB: An entertaining journal of law, and it’s the bobblehead doll.

SCALIA: My bobblehead doll. I understand that that is the most popular of the bobblehead dolls that the green bag does. Now why that is, maybe people are using it for dart practice, whatever, but they’ve done bobbleheads of all of the justices. I think the last one they did was Justice Kennedy. You know, they’ve gone down in order of seniority, and I guess that David Souter will be the next bobblehead.

LAMB: There’s also a web site that sells all kinds of T-shirts with your name on it. Have you seen that one?

SCALIA: No, I haven’t seen it. I’m not getting any commissions from that. I – do you think I should pursue it?

LAMB: I think that’s not a bad idea. There’s one of them that says I with a big heart love Antonin Scalia. There’s also some that say other things.

SCALIA: I’m sure that’s so.

LAMB: Is that good or bad in this society?

SCALIA: Well, frankly, Brian, that’s one reason I’ve sort of come out of the closet and – in recent months done more interviews and allowed my talks to be televised more than I did formerly. I’ve sort of come to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down. It’s no use, I’m going to be a public spectacle whether I come out of the closet or not, beyond T-shirts and bobblehead dolls and what-not.

So if, you know, if I am going to be a public figure, I guess the public may as well get their notion of me firsthand rather than filtered through people such as Brian Lamb, you know, other …

LAMB: James Oliphant wrote in the ”Chicago Tribune” a piece after you appeared on ”60 Minutes”, and the headline on it is, ”Justice Scalia Launches a Charm Offensive.”

SCALIA: Absolutely. (LAUGHTER) That’s an exaggeration.

LAMB: Well, he also writes, ”Picture Greta Garbo joining Facebook and you get the idea.”

SCALIA: Come on. It hasn’t been that – you know, part of it is I have a book I’m trying to promote, but some of it is just that I – at the urging of friends and family members, I’ve decided to be less reclusive.

LAMB: I want to show you some – did you – by the way, did you see the ”60 Minutes” interview?

SCALIA: Did I see it?

LAMB: Yes.

SCALIA: I was on it.

LAMB: No. That it was – did you watch it?

SCALIA: I did. I did. I saw a tape of it. I didn’t see it …

LAMB: Well, for those who didn’t see it, I want to just show you some silent parts of the whole idea, and ask you about them. You’ll see them on your monitor there. (INAUDIBLE) this is one showing you in the church, genuflecting, sign of the cross, coming up the steps of the Supreme Court with your wife, Maureen (ph), and Leslie Stahl. That’s about as far as one goes in this process of – on television. What led you to do all that, spend all that time?

SCALIA: I don’t know. I – you know, when you agree to do a piece, you are generally guided by what they want to do. What you’re seeing now – is this still on? Are your viewers seeing that?

LAMB: Yes. Yes.

SCALIA: That’s the grammar school I went to in Queens, PS 13. We visited that. That was nostalgic. The church scene was from the high school that I had gone to, so it was a bit of a biographical sketch, and it seemed to me not inappropriate. I didn’t know my genuflection was on camera, but I don’t particularly like my religious activities to be for the public.

LAMB: What did you think of the piece? I mean, given what you thought might happen in a ”60 Minutes” piece?

SCALIA: Oh, I thought it was really quite fair, if indeed not flattering.

LAMB: I want to show you …

SCALIA: And like my kids said, I was almost amiable.

LAMB: Have you seen the ”Daily Show” piece?


LAMB: Do you ever watch the ”Daily Show”?

SCALIA: I watched it once, and that was enough.

LAMB: Well, here’s what Jon Stewart did to your piece on ”60 Minutes”. This is just the beginning of it. We aren’t going to show the whole thing, and I want your reaction to this.


JON STEWART: The final arbiter of American justice is the Supreme Court. Roberts, Ginsburg, Souter, Stevens, Blitzen, Sleepy, Aquaman, Thomas and Scalia. These nine judges, these magnificent bastards help settle intractable American disputes. They settle intractable American disputes. Oftentimes only six to 15 years after the original incident has lost its relevance, but very rarely do we get a glimpse beneath the robes.

That’s why this weekend’s ”60 Minutes” was such a treat. In his first major TV interview, Justice Antonin Scalia sat down with Leslie Stahl, and while Scalia’s ultra conservative opinions may be controversial, the man himself is a tall glass of awesome.

LESLIE STAHL: Scalia was a star, first in his class, all four years. A person so unpretentious and down to earth, you could easily forget he sits on the Supreme Court. You missed very few days of school, you were never late and you never got anything ever less than an A. Your friends say that you’re charming and fun.

STEWART: And I have a follow-up question. Do you have a quarter? Because I have to call my mother and tell her I just met the judge of my dreams.

Oh, what’s that? I can use your office phone? Even better.

I’m not getting a dial – oh, dial nine first?

Well, since Scalia’s so charming and fun, I almost hate to bring up Bush v. Gore where the conservative majority voted against states’ rights, seemingly contradicting their own principles.

STAHL: From all the cases that have come before him on the court, Bush v. Gore may have been the most controversial.

SCALIA: Gee, I really don’t want to get into this. This is – get over it. It’s so old by now.

STEWART: Really? It’s so old, because he’s still (INAUDIBLE) President you know that? We’re still at war. Gas is still $5.00 a gallon. Still old by now, and yet it’s still rattling around in the old noggin there. So the constitutional originalist on the Supreme Court doesn’t want to revisit any Supreme Court decisions made before the year 2000. Dude, I am so getting a slave.


SCALIA: As I said, once was enough.

LAMB: The first ”60 Minutes” program was – 13 million people watched it.


LAMB: Probably a million-and-a-half or two million people watched this.


LAMB: What’s your reaction when you see it?

SCALIA: It’s a free country. I thought it was childish. As for Bush versus Gore, it’s still relevant. I mean, the President was re-elected after that, so, you know, it’s not as though blaming the war and everything else on the Supreme Court, that’s just ridiculous. The President, this was the first election. He was elected again, and the court had nothing to do with that.

Anyway, I, you know, I’m – and as everyone knows, in the first election, it would have come out the same way had the court not intervened because the press did an extensive study of each of the counties in Florida and had the votes, didn’t count the dimpled chads and the hanging chads and all of that. Had they been counted the way Mr. Gore wanted, he would still have lost.

And lastly, we – no, not lastly, penultimately, we didn’t go looking for trouble. The court didn’t uninvited leap into this electoral dispute. It was before the courts because Mr. Gore had brought it before the courts. He wanted the courts to decide the election, and when the matter came to us, it was simply a question whether the last word was going to be the Florida Supreme Court or the United States Supreme Court as to who would win the Presidential election.

When one of the parties to the cases said the Florida Supreme Court violated the federal Constitution, what were we supposed to do, turn the case down as being not important enough? Hardly.

And the ultimate point is that to refer to just so-called conservative majority, I don’t think conservative-liberal makes any sense in the context of the Supreme Court, but the vote as to whether the federal government would intervene in this dispute was not even close. It was seven to two. People forget that. By a vote of seven to two, the Supreme Court held that the Florida Supreme Court had violated the Constitution.

So, you know. Get over it, Brian.

LAMB: The real reason I showed you, it wasn’t the Gore – Bush v. Gore because you discussed that in a couple of other interviews. It was really to get your reaction to finding Jon Stewart, who does this nightly to everybody, just basically he uses humor and there’s politics involved in it. When you watch that, is that good or bad in our society?

SCALIA: Oh, I think it’s good that it could occur. I think it’s bad when it is the means of spreading inaccuracy. I mean, it seems to me you can be humorous and accurate at the same time.

LAMB: In your book, on page six, you say, ”Finally, learn as much as you readily can about the judge’s background.” Was that your idea or your co-author’s?

SCALIA: I, you know, I find it difficult to say which parts – with some exceptions, which parts of this book are his and which are mine because we went back and forth so often. It probably originated with him, I think.

LAMB: Because it goes on to say, ”Say your hearing before, it’s Judge Kabitsky (ph), I assume.”

SCALIA: Right.

LAMB: Is there a Florence Kabitsky (ph)?

SCALIA: No, there’s not as far as I know.

LAMB: With a little computer research and asking around, you discovered that fly fishing is her passion, that her father died when she was only seven, that her paternal grandparents who were both professors at a local college took charge of her upbringing, that she once chaired the State Democratic Party, that she enjoys bridge, that she has been estranged from her brother and her sister for many years, that she graduated from Mount Holyoke College and took her law degree from the University of Michigan. I can go on.

The point is, though, how much difference do you think that will make standing in front of you that they know everything about you?

SCALIA: You never know. You stopped too soon. One of the things we say later is that she was, in her private practice, she represented a trade union.

LAMB: Craft union before coming to the banks, and so on.

SCALIA: Right. And as we say later on, who knows. It may be that you have a tort case that involves shoddy workmanship by, you know, by non-union members. I mean, that would be useful to know. Stress the shoddy workmanship.

But, you know, even if all the things you learn are not, you know, immediately useful, it’s helpful simply to be talking to a real person. It humanizes the judge rather than just addressing a, you know, a black robe. I think it will facilitate the kind of rapport that should exist between the judge and the lawyer.

LAMB: You dedicate your book …

SCALIA: And let – many law firms keep book on judges. I mean, they have lists of their characteristics, are they short tempered, do they let lawyers blather on or do they cut them off, and so forth and so on. So.

LAMB: I actually have clipped a …


LAMB: … one of those quotes about keeping book.

But let me go to the personal stuff because in the last 20 minutes of our talk here, you dedicate this book to your parents, S. Eugene Scalia, 1903 to 1987. You talked some about that in your ”60 Minutes” interview, but tell us more about Eugene Scalia.

SCALIA: Oh. Well, I am often wrongly praised as, you know, being son of an immigrant as though I’ve lifted myself up by my own bootstraps. My father was indeed an immigrant, but he was an intellectual, much more intellectual man than I am, actually.

He was a professor of romance languages at Brooklyn College. Always had a book in front of his face, in French or Spanish or Italian. He taught all three of those languages.

LAMB: He can read in all those languages?

SCALIA: Oh, yes.

LAMB: What languages can you read?

SCALIA: French, German with difficulty, and English. Pretty good English.

But my father was – loved language. He used to correct my opinions when I was on the D.C. circuit. I’m not sure if I said this in the ”60 Minutes” interview, but it’s a good instance.

We used to have a formulary conclusion of all of our opinions on the D.C. circuit. It would go for the foregoing reasons, the judgment of the – it is ordered that, solid caps, ordered that the judgment of the District Court is affirmed.

That used to drive my father up the wall. I mean, he would say, ”Son, you can’t say it is ordered that it is affirmed. You have to use a subjunctive. It is ordered that it be affirmed.”

So I ended up being the only judge on the D.C. circuit who would have his opinions ordered that it be affirmed. Made my father happy.

LAMB: He lived the last four years when you were on the appeals court. He died in ’86.

SCALIA: He died I guess three months or so – well, maybe more than that. Four? Four months or so before I was nominated to the Supreme Court.

LAMB: How close were you to him in your life?

SCALIA: They were my only parents, and I was their only child.

LAMB: But what kind of relationship did you have? Compared with the relationship you have with your own children?

SCALIA: About the same. I was very close. I was very close.

LAMB: What about Catherine (ph) L. Scalia? 1905 to 1985.

SCALIA: That was my mother, who I only realized later devoted her life to making sure I did the right things, hung out with the right people, joined the right organizations.

LAMB: What do you mean by right?

SCALIA: I mean associated with young people that would not get me into trouble but rather would make me a better person.

LAMB: How did she know that?

SCALIA: Well, she made it her job to know who I was hanging out with. We had them over to my house and she was a den mother for the Cub Scouts, things of that sort.

She was a teacher, a grammar school teacher, and a very good one. When they died, I got some of the letters that she had kept of parents of children that she had taught. She was – must have been pretty good.

LAMB: In those early years of your education with public school, then you went to Xavier?

SCALIA: Xavier High School in Manhattan.

LAMB: And then from there to Georgetown or Harvard?

SCALIA: No, Georgetown for college. I went to Harvard for law school.

LAMB: When – what was the most important part of those early years about getting ready to be either a student or to be a judge?

SCALIA: Oh, the – well, I mean, to be a judge, I didn’t expect to be a judge, even when I was in law school, so I, you know, I was not, you know, preparing for that career.

Or for that matter even to be a lawyer. I didn’t decide to be a lawyer until I, you know, was in my last year of college and had to decide what I was going to do next year, and I ended up really not being able to make up my mind. I had an uncle, uncle Vince, who was a lawyer and seemed to have a good life and to enjoy what he did, so I said, ”I’ll go to law school.” But I can’t say I set my cap on being even a lawyer, much less a judge.

Of all those schools, I think the most formative, and I don’t think I’m unique in that regard, I think the high school years are really the most formative.

LAMB: Can you remember a teacher in high school that made an impact?

SCALIA: I can remember a lot of teachers. I have recounted in some of my speeches, I’m trying to – I don’t want to repeat what I said on ”60 Minutes”, so I don’t know that I said this or not, I have – one teacher I remember was an elderly Jesuit at Xavier from Boston. He had a Boston accent. Father Tom Matthews (ph), and he taught me a lesson that I’ve recounted in some of my speeches. He taught me what I refer to as the Shakespeare principle.

The class was reading one of the Shakespeare plays, ”Hamlet” or whatever, and one of my classmates or whatever, sort of smart aleck kid, John Antonelli (ph), as I recall. It’s ridiculous I would remember his name. But he made some really smart aleck sophomoric criticism of the play, and Father Matthews (ph) looked down at him and he said, with his Boston accent, ”Mister, when you read Shakespeare, Shakespeare’s not on trial. You are.”

And I’ve always remembered that. It’s a pretty good guide for life there, as I apply it to the law when the theories, the rules that the court has invented to explain the results in some cases, when those rules come up against a longstanding American tradition which simply doesn’t comport with the rule, it ain’t the tradition that’s wrong, it’s the rule that’s wrong. Rules are supposed to explain the traditions, not vice versa.

So that’s the Shakespeare principle.

LAMB: Was there ever a time that you said to yourself, that you could admit saying to yourself, ”I would like to be on the Supreme Court”?

SCALIA: Oh, I guess only at the point where I was reputed to be on the quote short list, but, you know, until that happens, it’s pie in the sky, nobody …

LAMB: What was the …

SCALIA: … lot of luck involved, Brian, just in case you don’t know that.

LAMB: But what would you advise someone that even dreams about being a judge, a federal judge. What’s the best course? I mean, 15 of the justices of the Supreme Court went to Harvard out of the 110. Six of them went to the, I think, Princeton, and five of them, I wrote them down here, went to Yale, and the rest are all scattered.

SCALIA: Well, you know, Harvard’s graduated by far more lawyers than any other law school in the country, so you ought to adjust your statistics to take account of that.

LAMB: By the way, 600 Columbia, not Princeton.

SCALIA: Yes. I mean, Harvard’s been graduating a class of 500 every year since at least right after the war …

LAMB: Right.

SCALIA: … right after World War II.

LAMB: What’s the best training? What’s the best, you know, I know the – you say luck’s involved in it, but if you want to have the very best at any given time before you might stick your foot in the water, what is it?

SCALIA: Well, you want to get into the best law school you can, and generally speaking, that is the most prestigious law school. Some of them I would pass, but they generally will have the best professors and the professors teach themselves rather than the law. The law is just like chewing gum. It’s what they use to develop your mental jaws, and you spit it out because the law will probably change by the time you’re in practice for 20 years. It’s important to have good teachers.

Now some law schools are better teaching law schools than others, and the best thing to get is a school that both has very intelligent professors and professors who place a premium on teaching.

You know, I’ve been in academia, so I know the game, and unfortunately the incentives are all long. You get to be a prominent academic by publishing, not by teaching. You become attractive to other law schools if you want to move up the ladder by your publications, not by your teaching. That’s sort of unfortunate.

LAMB: This book that we’ve been talking some about, ”Making Your Case, the Art of Persuading Judges,” if you were to take the next step and if this turns out to be something you enjoy doing, what would another book you’d like to write be?

SCALIA: Well, I’ve toyed with the idea of doing a book just of prior publications and prior speeches that I’ve given, some of which I really am quite fond of, and the speeches have never been published.

I’ve thought about doing a book on textual interpretation, as it should be done rather than as it is done.

And I’ve thought of doing a book on constitutional interpretation, expanding on the – an early book that was a reproduction of lectures that I had given at Princeton.

LAMB: Some video from 1986 of your confirmation hearings, at the point where your family was introduced.


SCALIA: My wife, Maureen (ph), is at the right in the front row. Next to her is Meg (ph). Her real name is Margaret (ph), but she said I should introduce her as Meg (ph) because when she’s called Margaret (ph) she’s usually in trouble.

Katherine (ph), Christopher (ph), Matthew (ph), and in the next row from the other end, Mary (ph), Ann (ph), my oldest, Eugene (ph), John (ph), Paul (ph), and that’s it.

UNIDENTIFIED PARTICIPANT: You have a good memory.

SCALIA: But don’t try me on the ages, Senator.

LAMB: You did have a good memory, but I have – my favorite question of this hour is, can you name your 28 grandchildren?

SCALIA: No, come on, Brian. That’s a really unfair question.

LAMB: Yes, I …

SCALIA: If you give me enough time, I could, but I can’t – it’s not fair. I can’t rattle them off like my nine children.

LAMB: You want to try?

SCALIA: No. Not even going to try because I’ll offend one or another of them.

LAMB: How about the nine children? Where are they, how old are they, and what are they doing?

SCALIA: Well, the ages go from 27 to 47. The two youngest are unmarried. One is a priest, so he’s not married.

LAMB: That’s three.

SCALIA: That’s three. And the other six, the three girls are raising some of my 28 grandchildren. The oldest was a businesswoman previously, and the next, Katherine (ph), was – had a master’s in library science, but she’s a stay-at-home mom now, and the third was a German teacher in the Arlington county schools, and she’s a stay-at-home mom now.

Among the five boys, the first two are lawyers, the third one’s the priest, and I say only half jokingly that I think one priest makes up for two lawyers.

And, let’s see, the fourth son is a soldier. He’s now a major in the infantry, a ranger, airborne, the whole thing. Real patriot.

And the last son is a professor of English at the University of Virginia at Wise, Virginia.

LAMB: Now, everybody always asks this question, if somebody has nine children and has been a public servant all these years, how did you financially do it?

SCALIA: It was not easy. My wife is a very – she’s a very cheap woman. She is very parsimonious. Also very well organized.

Matthew (ph) went to West Point. That saved us college tuition for him. Three of the others went to state colleges. We don’t do graduate school, we do college. Graduate school they have to scramble on their own, although we have helped a little bit, but, you know, I feel no obligation to pay for graduate school.

We had some help from my parents. I’m the only son, and that helped.

When I first became a judge, I could not have hacked it, except that I taught on the side and made some additional income from teaching.

Anyway, they’re all out of college now, and it’s a great relief to have that burden off your shoulders.

LAMB: What’s the difference between you and your wife, Maureen (ph)? Difference in attitude and interests and politics, in child rearing?

SCALIA: We have very few differences. We really are most fortunate. I mean, our tastes are the same in everything, from music to food.

As for – as far as child rearing, I’m probably a little tougher than she is, although I don’t now that for sure. I think she tries to, you know, rein me in, but on the side she herself may be tougher.

She’s a good – a very good mother. I mean, has all sorts of theories on child rearing. She ought to do a book. Her greatest theory is this. Since when a child reaches the teenage years the child is going to revolt, I mean that is a given. That’s what being a teenager is all about, asserting your own personality.

Since that’s true, the rules you’ve set have to be just short of what is reasonable. That is to say, just short of what would harm the child. You know, if you’re only, oh, do everything, so long as you don’t use drugs, you know, so long as you don’t hurt yourself. The kid’s going to use drugs if that’s the only way he can revolt. You have to have some irrational rules, like be home at 12:30, you know.

Kid gets to be a teenager, he comes home at 12:45, you throw a fit. The kid is pleased that he’s asserted himself. I think it’s a real insight that you have to set your rules a little short, a little short of what will harm the child.

LAMB: Very little time left. What do you think of this to my left?

SCALIA: I really like that. That is a – it’s a tradition at the court to have the law clerks of a justice commission a portrait which will be hung at the court when the justice dies or retires, and that portrait has to be made before he dies or retires, needless to say.

And what will happen to it in the interim? It will probably hang at Harvard Law School until I leave the court.

LAMB: What’s there on the right where your hand – what’s your hand on?

SCALIA: My hand is on a kind – if you get real close, you can see the title, it’s the ”Federalist”, and above that is ”Webster’s Second International Dictionary”. I don’t like the third.

And behind that is the wedding portrait of Maureen, and down at the bottom is a well-known portrait of Thomas More who’s one of my heroes.

LAMB: Who did the portrait?

SCALIA: The portrait was done by Nelson Shanks (ph), who’s an artist, not just a portrait artist, but a very good artist, I think, who works out of a studio near Philadelphia.

LAMB: Finally, this video from your 1986 hearing, and I want to ask you have you changed your life since then? Watch this.

SCALIA: Look at the pipe!

LAMB: It’s really just to show that you’re smoking a pipe, which you never see now ever.

SCALIA: No, you never see it. It was wonderful in those days because whenever I wanted to distract attention, all I had to do was stick the pipe in my mouth and puff on it and you would hear all the cameras, you have all of these cameramen who have their backs to the rostrum where all of the congressmen are, there are all the senators, and all the cameras go click, click, click, click, click, click. I still have – whenever I brought up the pipe.

Yes, I don’t smoke a pipe anymore.

LAMB: Why’d you quit?

SCALIA: It’s a lot of trouble, a pipe. I kept losing the darn things. Pipes and umbrellas, I never was able to hold onto.

LAMB: The title of the book is ”Making Your Case, the Art of Persuading Judges,” co-authored by Bryan Garner and our guest, Antonin Scalia.

Thank you very much.

SCALIA: Thank you, Brian.

ANNOUNCER: For a copy on VDD or VHS tape, call 1-877-662-7726. For free transcripts or to give us your comments about this program, visit us at q-and-a.org. Q&A programs are also available as C-SPAN pod casts.


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