Justice Antonin Scalia: His Legacy and the Impact of his Death

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Transcript

Lawyer 2 Lawyer: Justice Antonin Scalia: His Legacy and the Impact of his Death – 3/17/2016

 

Intro: He demanded profession and rightfully so.

 

Justice Scalia was a gentleman and courtly man and good to people. There were times, I would agree, where he was over the top and I think some of the other justices would agree.

 

Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

 

Bob Ambrogi: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to from just outside of Boston where I write a blog called Lawsites. My co host, Craig Williams, is not able to be with us today. He may be joining us later in the show if the schedule permits. Before we introduce today’s topic, I would like to thank our sponsor, Clio, an  online practice management program for lawyers. You can find out more about Clio  at www.GoClio.com. Last month, Justice Antonin Scalia died unexpectedly sparking a huge reaction in the legal and political world. Justice Scalia was appointed to the Supreme Court by president Ronald Reagan in 1986. He was known for his conservative position and his originalist position in his court rulings. Since his death, there’s been great controversy over his replacement and the nomination process and what’s going to happen there. But today we’re going to talk more about Justice Scalia, about his legacy, what he meant to the court, what he represented on the court, and a little bit as well about the controversy of replacement and the impact his death will have on the future of the court. To help us do that today we have two guests joining us. First of all let me introduce Tony Mauro. Tony is the Supreme Court correspondent for the National Law Journal. Tony has covered the Court for over 30 years. He  has also written about the First Amendment and food, reviewing restaurants for various publications. Tony lives in Alexandria, Virginia with his wife Kathy Cullinan, and his daughter Emily Mauro, lives nearby, in Arlington. Welcome back to Lawyer 2 Lawyer Tony Mauro.

 

Tony Mauro: Good to be with you.

 

Bob Ambrogi: And also joining us today is Kevin P. Martin. Kevin is an appellate regulatory litigation partner and coachier of Goodwin Procter’s appellate litigation group in Boston. Kevin’s practice involves high stakes appeals and trials before federal and state courts and administrative agencies, with a focus on matters presenting complex constitutional and administrative law issues, as well as questions of federal preemption. Prior to joining Goodwin Procter, Kevin clerked for Justice Antonin Scalia on the United States Supreme Court and also for Judge Laurence Silberman on the U.S. Court of Appeals for the District of Columbia Circuit. Welcome to Lawyer 2 Lawyer Kevin Martin.

 

Kevin P. Martin: Thanks for having me, Bob.

 

Bob Ambrogi: Tony, I’m wondering if we could start with you just because you’ve been covering the court – if I have this here right – I think since 1979 when Warren Berger would have been chief justice. You’ve seen the court over a good period of time. I wonder from your perspective, what was Justice Scalia’s role in shaping the court as we know it today?

 

Tony Mauro: Well, a couple of things. The first in terms of actual operation of the court and the way things worked. Justice Scalia brought a tremendous change in one aspect. When I first started covering the Supreme Court, oral arguments were pretty much of a sleepy affair. Only a few questions would be asked. Most of the justices asked at the time, so lawyers would have pre reigning in sort of orating and giving the justices their prepared speeches. But then Justice Scalia came on the court in 1986 and everything changed. Even as a rookie justice, he still had a case of jumping right in and asking numerous questions, very provocative questions. Sometimes it would be very obvious which side he was on. He would often tell an advocate, “Shouldn’t your answer really be this instead of what you just said?” He would throw lifelines out to advocates. I remember one time he asked a question of an advocate and the lawyer paused a little too long and Justice Scalia said, “Counselor, I asked you a question and you’ve got four choices: yes, no, I don’t know, or I’m not telling. Which is it?” And I think at that point I would have fainted. But the advocate carried on. Anyway, my point is that he made the oral argument process a very interactive and very robust experience for lawyers. Gradually over time, all the other justices followed suit. So they were trying a lot more than they used to. And now it’s almost to the point of being a free for all. Justices interrupt each other, they interrupt the advocates. I think it’s gone a little too far and some justices have said that. But this really was in large parts Scalia’s doing in transformation of oral argument.

 

Bob Ambrogi: Kevin, what years were you clerking at the court?

 

Kevin P. Martin: I showed up in 2000, was there for October term 2000 which lasted until June of 20001. And Tony was exactly right about the way that the atmosphere was at that point. Some of my best memories of watching oral argument were Justices Scalia and Breyer going back and forth really just using the actual attorneys arguing the case almost as – I don’t want to say pawns – but foils as they themselves argued back and forth trying to convince justices who might be the deciding vote.

 

Bob Ambrogi: I have to wonder what it was like from the perspective of the clerks. I read a quote from Bryan Garner where he said Justice Scalia is an intellectual hugalist throwing some very hard punches. So did the clerks get bruised at all?

 

Kevin P. Martin: In chambers he demanded perfection and rightfully so. He wanted to know that if you were telling him that a certain case that he was relying upon that’s present stood for a certain proposition that it did. If you put together a drafted opinion that was not well supported, he would let you know it.

 

Bob Ambrogi: I’m sure we have all read a lot about the various articles; a lot has been written in the last month by Justice Scalia and the legacy he left. I’d be curious to hear from each of you what you see as his legacy in the court. Tony, how about you?

 

Tony Mauro: I think the most profound influence he had on the court was his theory of originalism, which means that first and often the last stop that the court or judge should take in interpreting the statute or the constitution should be the actual words of the constitution and what those words meant at the time they were written. It used to be that judges would give lip service to that notion of just interpreting the words of the statute. The force of Justice Scalia’s views on this issue really had tremendous impact over the years to where – as I said – most judges would pay more than lip service. They have to actually look at the words. It’s not a strictly, totally objective way of interpreting a statute. There are subjective ways you can do this and example is the District of Columbia v. Heller, the second amendment case that Justice Scalia wrote. He used the words of the second amendment, the right to bear arms and what that meant at the time of the framers to interpret the second amendment as meaning that it’s an individual right to bear arms. He always portrayed this as the best example of originalism. But of course, Justice Stevens wrote it the dissent in that same case and he also used the words of the framers. He used an originalistic approach and came up with exactly the opposite interpretation. He can disagree about who got it right who got it wrong. This concept of originalism, as strong as it was and as important as it is, can be manipulated by both sides.

 

Bob Ambrogi: Kevin Martin, what about you? What do you see as Justice Scalia’s overarching legacy?

 

Kevin P. Martin: I think Tony’s right. It is this notion of originalism. Not only in his own jurisprudence but in the other justices who now – for example Justice Thomas – who really have that same originalist viewpoint and many judges in the lower courts and professors in law schools whose approach to the law and legal interpretation is different than it would have been had Justice Scalia not come along and be such a forceful advocate for it. On the subject of originalism in the Heller case, one interesting thing to point out as Tony mentioned Justice Scalia and Justice Stevens both were applying an originalist framework for the case and they came out in different places. I think Justice Scalia would have said that it’s not just one side or the other manipulating, it’s just different people looking at the same side of historical facts and maybe drawing different opinions of what the history shows. Justice Scalia loved that though because in his mind, at least they were fighting on the same battlefield. They were going back and pouring through the historical records and trying to answer the same question, what does the second amendment mean when it was adopted. Even if they came out in a different place, in his mind that was much better than having him try to interpret the historical text while somebody else was on a flight of philosophical fantasy trying to decide not what the second amendment meant when it was adopted but perhaps what it should mean today given, for example, change in social norms. So he was very happy with Justice Stevens’s dissent.

 

Bob Ambrogi: Is Heller the case that best embodies his originalist philosophy? Or I’ll put it in another way, is that the most important opinion he authored?

 

Kevin P. Martin: I guess there are two different questions there. But I would say the opinions that best embody his originalist philosophy would be those where if you look at his personal politics, his approach to constitutional interpretation led him somewhere that he might not otherwise go. He’s well known, for example, for having authored many opinions, upholding the rights of criminal defendants often with a more liberal justice like Justice Breyer on the other side. Because he strongly believed that the constitution as originally interpreted was to require that outcome. Not because he particularly wanted to coddle criminals. Punitive damages are another area where many conservative lawyers have advanced through BMW v. Gore and State Farm and other cases Limits on punitive damages from Justice Scalia’s perspective, if you look at the constitution it says nothing about limits on punitive damages and so that should be left to juries. I think those are the opinions where his approach really manifested itself because those are cases where he was not really influenced by his own political views.

 

Tony Mauro: I agree with that and another example in this case Justice Scalia said actually was probably his favorite case that he wrote: Crawford v. Washington which the confrontation clause of the 6th amendment. What it did as Kevin said was favor defendants in many instances. He basically said the prosecution can’t bring evidence to trial in the form of an affidavit or a written report from a lab technician or something. The person bringing evidence suggests a defendant had to actually be at the equivalent of being at the court so the accused and the accused’s lawyer could confront that evidence and subjected to cross examination. He just felt whether it benefited the defendant or not, he felt this is what the constitution was intended. This is was the bill of rights 6th amendment was to mean, it was its original meaning.

 

Bob Ambrogi: Before we move onto our next segment we’re going to take a quick break to hear a message from our sponsor. Stay with us and we’ll be back in just a few moment to talk more about Justice Scalia.

 

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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer, this is Bob Ambrogi and we’re talking about the life and career of Justice Antonin Scalia and I’ve now been joined by our co host J. Craig Williams who wasn’t available for the first part of the show. And we’re continuing our conversation with Tony Mauro, Supreme Court correspondent for the National Law Journal and Kevin Martin at Goodwin Procter, a former law clerk to Justice Scalia. I’m sure you all saw the article that Jeffrey Dubin wrote in the New Yorker that was less than kind to Antonin Scalia. He opened it by saying Antonin Scalia devoted his professional life to making the United States a less fair, less tolerant and less admirable democracy. Belligerent with his colleagues, dismissive of his critics and nostalgic of a world where outsiders knew their place and stayed there. Scalia represents a perfect model of everything President Obama should avoid in a successor. Let me ask each of you, is that a fair assessment? Tony? Kevin?

 

Kevin P. Martin: I’ll start off, I think that’s frankly ridiculous and obnoxious. Justice Scalia’s approach to constitutional interpretation ultimately was a very democratic approach to constitutional interpretation and on so many issues. If you want to look at the issues that Jeffrey Dubin had in mind, let’s say abortion or same sex marriage, take your pick. Justice Scalia’s ultimate view was that those should be left up to the people because the constitution does not say anything about them. And when the relevant provisions in the constitution were adopted, the authors of those provisions did not understand themselves and then people reading it did not understand themselves. To be limiting the ability of future democratic majorities to legislate on these issues. If Mr. Dubin believes that America’s an uglier place, it would be an uglier place based on Justice Scalia’s decisions, he’s really pointing his finger towards the American public who voted on laws for these subjects. And ultimately Scalia respected the democratic prerogatives of the people. And it’s those who would turn the court into a sword to strike down laws on all kinds of subjects, notwithstanding that nobody who enacted the relevant constitutional provisions thought they were limiting democratic rights of future majorities who are anti democratic.

 

1. Craig Williams: There’s been much made of Justice Scalia’s very friendly relationship with Justice Ginsburg. What’s your sense of that, Tony? And what’s your sense of his relationship with other justices on the bench and how is that going to change now?

 

Tony Mauro: I think it always was remarkable, Justice Scalia’s best friend on the court was Justice Ginsburg. Almost everything in terms of doctrine but they were close friends and I think it does give you a hint that at least with some respect to Jeffrey Dubin’s article was wrong. I think Justice Scalia was a gentleman, a courtly man and good to people. There were times, I would agree, where he was over the top and I think some of the other justices would agree that he really couldn’t be quite goodall to the advocates. He could be very dismissive of h is colleagues. There was the same sex marriage decision where he said about Justice Kennedy that he would put a bag over his head over agreeing to a decision like this. You always wonder how could they look at each other the next day at work after Justice Scalia unloaded his very big views on his colleagues. And I think there were some people who felt that Justice Scalia came on the court, conservatives hoped that because he was such a brilliant person that he would bring a number of justices along and be a real leader on the court reforming majorities to his point of view. And I think that some of them were disappointed that over the years Justice Scalia kind of gave up on that and thought he’d rather just be a happy warrior and make his points as aggressively as he can and kind of gave up on the idea of building majorities. At least some people have felt that way. But certainly without him, the court would be completely different. It’s already been hard to watch oral arguments as I have in the last week or so without him. It’s like a missing wheel on a car or something. It’ll be hard for the court to adjust.

 

1. Craig Williams: For the first time there was a question by Clarence Thomas shortly after Justice Scalia’s death. For the first time in ten years! Do you attribute that to Scalia?

 

Kevin P. Martin: That would be funny if that were the case and maybe it is. But it had been ten years and it might have just been time for another question.

 

Bob Ambrogi: Kevin, I’m just wondering from your perspective in having worked with him what you saw as sort of Scalia the person. You talked a lot about his legal philosophy and where he stood on issues. But just from working with him as a clerk, what was he like personally?

 

Kevin P. Martin: So putting aside the actual work with him, he demanded a very high level of rigor. Before oral arguments, he would require you to prepare a two page bench memo. It could only be two pages. You could fiddle with the margins a little bit, you could fiddle with the font stuff. But if it were more than two you would get in trouble. He would then have each of the clerks discuss with him each of the cases we’d all gather in his office. The clerk who was principally responsible for the case would give a presentation and a recommendation and all the other clerks would have a chance to weigh in and push on what the recommended outcome was. And of course the justice himself would weigh in. So when you’re in your mid 20’s and you’re in that atmosphere with a lot of other very smart people, it’s a great testing ground. Then when you’re not working, he was somewhat grandfatherly. He would take you to lunch, crack terrible jokes; he was just a fun, nice guy. It’s no surprise that Justice Ginsburg and many other people who disagreed with him on legal issues nonetheless were his friend.

 

Bob Ambrogi: Tony you had one of the most entertaining pieces I’ve read – if entertaining is the right word – is your essay in the National Law Journal. When Justice Scalia turned my name into an adjective, is there a short version of that you could relate for us?

 

Tony Mauro: Sure, I’ll keep it short. But Justice Scalia, like most justices, didn’t have much use for the reporters who covered the court unlike the other branches of government. Justices don’t feel like they have much need to interact with us and that’s fine. We’re not supposed to be buddies. But there was one case instance where he got really upset with something I wrote. An article about him sort of informally lobbying for an effect to higher salary for justices and he had 9 children to put through college so it seemed like he was talking to another member of Congress about this. He wrote a letter to the editor of Legal Times which was a precursor of the National Law Journal when they emerged. He wrote a letter to the editor claiming that the story I had written was gossipy and titillating and therefore characteristically moronic, and he spelled moronic as Mauronic, which is my last name. So I became an adjective.

 

Bob Ambrogi: Wasn’t there something about his beard as well? You had made reference to his beard?

 

Tony Mauro: Yeah, that was another thing. For one term he actually grew a beard over the Summer and came to court and everybody was just surprised to see him that way. I kind of tongue in cheek said that people were debating whether he looked more like Pavarotti or Dom Deluise and I think he didn’t like that one either. So we had kind of a mixed back relationship. Finally in recent years, he became not friendly, but certainly we shook hands once and I was no longer an adjective.

 

1. Craig Williams: Kevin, what’s Justice Scalia’s legacy as we leave the Supreme Court issue and move on to a new justice coming out? What can we take away from Justice Scalia’s time on the bench?

 

Kevin P. Martin: I think the one thing to take away from his time on the bench is that you can approach constitutional interpretation in a way that is divorced from your own political views. As we were talking about earlier, there were many cases in which Justice Scalia came to results in cases where his own personal political views may not have led him to. I think he serves as a good model for the neutral judge who calls balls and strikes and doesn’t necessarily try to come to the outcome that he wants.

 

Bob Ambrogi: There was a letter sent today to the president and the senate regarding a number of corporate counsel and in-house lawyers for the vacancy they filled out promptly. Kevin, do you have a perspective on that?

 

Kevin P. Martin: I think it would be great if they could find a consensus candidate to fill the spot. I’m not sure that’s remotely possible. While it would be ideal for that to happen, I guess on the other side I’m not that concerned if it doesn’t. And for this reason, the court has a discretion already docketed. Sometimes issues percolate in the lower court for years before they get up to the Supreme Court. So now we’re in March and the court will stop hearing cases in just a month or two and then take a long Summer recess waiting until the middle of next term to have another justice appointed. Again, not ideal, but if certain issues have to say in the circuit courts for another cycle, it’s not the end of the world.

 

Tony Mauro: I would say it’s not the end of the world but a lot of things, big and small, there are a lot of consequences of an 8-membered court that really are slowing things down over time. And I think while some people have speculated or wondered what would Justice Scalia think about all of this, would he read the constitution to require or at least encourage the president to make nomination status. I think he probably would, for me that’s the way to go. I think that’s really the concept the supremes of the constitution had about Supreme Court appointments. So for the court to go an entire year or could be more than a year without the 9th justice, I think is damaging to the court’s image and the stability of the law. But yes, it’s not the end of the world.

 

Kevin P. Martin: I think it’s too bad in some ways. Because again, going back to Justice Scalia’s fundamental philosophy that many issues should be left to democratic processes and should be constitutionalized and federalized. He’s probably the last person in the world who would want the replacement of a single justice to matter so much. Nonetheless, he’s the one who passed away in the middle of the term and therefore we found ourselves in this situation.

 

Bob Ambrogi: I think we’re very near the end of our time. Craig, I know you joined late but did you have anything else you wanted to ask before we wrap up?

 

1. Craig Williams: Yeah, I was going to ask Kevin and Tony just as a followup to the question of the responses of the nomination what you would be saying to congress at this point about nominating a justice for the Supreme Court. Kevin, I know you mentioned it’s necessary and it’s damaging to the court, but what political message needs to get to the congress in order for an appointment to be made?

 

Kevin P. Martin: I guess I would say the congress should vote how you want. The constitution itself places no time limits on how long a nomination could be pending. So if President Obama puts up somebody who is a consensus candidate given that there is a Republican controlled senate, they should strongly consider that person. If, however, President Obama nominates somebody who seems like they’re more of a political statement or whose views are not acceptable to a Republican controlled senate then they’re within their rights to say no to that person and send the president back to the drawing board. That may wind up running up the clock but that’s the nature of the advice and consent process.

 

Tony Mauro: I guess I would say that ideally it would be great if it could be as an unpolitical process as possible. But that’s almost impossible, we’re right in the election campaign, a very heated one, and there are so many things that depend on who’s nominated and who’s confirmed. We’re in a real pickle right now; if it could be done as harmoniously as possible it would be great but I’m not too optimistic.

 

Bob Ambrogi: We’re just about at the end of our time for the show today. Before we wrap up we would like to give each of you an opportunity to give your final thoughts on Justice Scalia and his career and also let our listeners know how they can follow up with you if they’d like to do that. Tony Mauro, let’s start with you.

 

Tony Mauro: As much as I had kind of a mixed relationship with him, I think he had the love of the law and respect for the law which was what animated him and I think he’ll be long remembered as one of the most influential justices in history. Maybe not in the quantity of the pivotal decisions he wrote but in terms of originalism, the approach to judging, he just had a tremendous impact.

 

Bob Ambrogi: Thanks, and our listeners could find you at the National Law Journal?

 

Tony Mauro: Yes, you can find my articles unfortunately sometimes behind registration, but it’s at NationalLawJournal.com. And my email is [email protected].

 

Bob Ambrogi: Thanks a lot. And Kevin Martin, your final thoughts.

 

Kevin P. Martin: Justice Scalia was appointed to the Supreme Court when I was in junior high school, so to my memory he was always there and his views are very formative of my own as I was coming up as a young man through law school. He was, as Tony said, a giant and he’ll very much be missed. You can find me at GoodwinProcter.com where I practice. I also publish occasionally on constitutional and political issues at NewBostonPost.com. You can find my articles there.

 

Bob Ambrogi: Thanks to both of you for taking the time to be with us today. We really appreciate it. Tony Mauro from the National Law Journal and Kevin Martin, former clerk to Justice Scalia and partner at the Goodwin Procter in Boston.

 

Tony Mauro: Thank you.

 

Kevin P. Martin: Thank you for having us.

 

1. Craig Williams: That brings us to the end of our show for today. I’m Craig Williams with Bob Ambrogi; thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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