Law Blog Chats with Scalia: On Knowing Your Audience, and Italian Fare

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The Law Blog has been reading Justice Scalia’s book, “Making Your Case: The Art of Persuading Judges.” But just as judges hear oral arguments in addition to the briefs, we wanted to talk directly with the justice himself. So when Kathy Arberg, the Supreme Court’s longtime public information officer, arranged for the Law Blog to chat with Justice Scalia in his chambers, we made a beeline for One First Street, NE.

Here’s part one of the interview, conducted Thursday in his chambers. Parts two and three will follow later today.

Thanks for chatting with me, Justice Scalia. I write a legal news blog, called the Law Blog, for The Wall Street Journal.

Yes, I’ve seen some of your pieces.

Well, we’re here to talk about your book. Let’s begin at the beginning. For the epigraph, you quote from T.W. Wakeling: “Experience is undoubtedly a great teacher, yet it may be counterproductive if what has been cultivated and refined are bad habits.” Have you struggled with any bad habits?

I think different people have to wrestle with different problems. And I think one of mine is that I tend to be too assertive. That’s not the kind of atmosphere you want to establish. Speak more slowly, speak more softly. That is one of the, what should I say, shortcomings that I would’ve focused attention on if I’d had any kind of lengthy appellate career.

In the course of writing the book, you and your co-author, Bryan Garner, consulted more than a dozen judges. Did you learn anything about the habits of your colleagues?

We learned an awful lot from them. Stuff that I didn’t know. For example, the part about judges who retro-read.

Read the briefs in reverse.

Yeah. If you’re really in a hurry and you don’t care about how the lawyers have slaved to make sense out of stuff, it saves time because, as the case goes along, it gets narrower. You pare down. It’s good if you really want to find the kernel of a dispute. I didn’t know that a lot of judges did that. I don’t do it. I don’t think it’s fair to the lawyers.

In the section entitled “Know your audience,” you urge advocates to learn as much as they can about the judge who will decide the case ? from what entities they represented as a lawyer, to their favorite restaurant. For a litigator arguing before the Supreme Court, what’s important to know about Justice Scalia?

Oh my. Well, I was a law professor, so I’m not scared by abstract academic ideas. I was in the government, and I am aware of both the benefits and the costs of federal agencies. I was the head of the Office of Legal Counsel, which is really the paladin of presidential prerogative. So Scalia probably cares about observing the separation of powers.

As for favorite restaurants, we heard that your favorite D.C.-area Italian eatery, A.V., closed recently.

Isn’t that a shame? I sometimes go to Tosca, but Tosca’s a lot pricier than A.V. used to be. What I recommend is right across the river in Crystal City, a little place called Bebo. It’s much less pricey. The ambience is not as posh. But the food is just as good. The pizzas are perhaps even better than they were at A.V. They have a wood-burning pizza oven imported from Italy.

Sounds delicious. But tell me, why is it so important to know the background of a judge, but not important to know the background of a statute? You famously spurn any use of legislative history.

Oh it is important to know the background of a statute if you’re speaking to a judge that uses legislative history. I’m not that judge. I’m giving advice to lawyers. Your job is to do whatever you can within proper ethics to persuade this particular judge.

One of your former clerks, Paul Clement, who recently announced his resignation as solicitor general, often argues legislative history.

He proves the point that you can argue legislative history all the time. He knows it makes me sick, but he knows that most of my colleagues will use it and therefore he has to use it. And he argues positions that he knows I’m very much against, but that’s his job.

Check back a bit later for parts 2 and 3.
Photo: AP