Transcripts For CSPAN2 Jeffrey Sutton The Essential Scalia 2

CSPAN2 Jeffrey Sutton The Essential Scalia July 11, 2024

So what could go wrong. [laughter]. Thank you. Thank you for coming and we have a lot of people here today. As you probably recognize by now, we have to socially distance and follow other sorts of guidelines and regulations today. So thank you for your patience. And thank you for following those. We have here today with us Jeffrey Sutton, its an honor to have him here. Fluid last night right through the storm. So we are grateful that he got here safely and that we are able to have this event today. Jeffrey sutton is a judge for the sixth circuit where he serves since 2003 news nominated by george w. Bush. His former general of ohio, in private practice, and is clerked for several judges including Justice Antonin Scalia as essential gives new book targeted so todays event, the essential scalia. That is the new book that he edited another friend of ours who has been here not too long ago and also talked about another scalia book brightest of all about scullion in this chapter. It and Jeffrey Sutton to be a and a lot of great from the ohio state university. He has served as chair at the federal Judicial Conference Committee will practice of procedures and appointed that position by john roberts. And is taught constitutional law and other legal subjects in the number of universities. In the he is now teaching at several universities right now. One benefit to the pandemic is his zoom and other types of online applications of students are able to have him as a professor without him having to be there present in person. So there is a tremendous benefit to the Legal Academy at large. Thank you for being here today. Thank you for talking to us about your new book for you to survive something we talked about in the car on the way over. Justice scalias influence on you individually and tilts up philosophically. Jeffrey will first of all thank you alan for inviting me. It is going to be your life. Not on zoom prince glad we are here. And cautious and so forth. I have a lot of fun memories coming from montgomery. I feel as if my career got started heres soon if i left the ohio assistant generals office. And then was hired to cut and note several cases. Heavily he did not yet have a full general. His that was my window of opportunity. In that position had been filled in the earlier im not sure what wouldve happened in my career but i was really fortunate to get to know bill and 75 people in the Alabama Attorney generals office. So a lot of fun to come here and could come back. Sue and ive been thinking about this a lot. I second disseminated innocent, you know i was thinking that Justice Antonin Scalia is been become more influential since he died and he was watkins living. Nothing. How can that be. The woods might explain the impact that hes having in such essential about the original is him in contextualism and i feel like my own path to getting to know Justice Antonin Scalia offers a little bit of an explanation. It so forgive me but i think there is a point here. I came from a. Progressive family, new england. My first president ial an election was a 1980 and i voted for jimmy carter to give you since the things bringing you learned about and it by the time i went to law school 1987, i just a Political Party did that was my main thing that i had meetings, they wouldve been in the more progressive direction. He cannot until june when it ritualism met when i started and maybe even by the time i graduated. And as a happen so it didnt need her meet tempting of america avenues fortunate enough to get a clerk spot. The office the offer was actually from Justice Powell who was then a retired justice. Each gets one law clerk and i was has one low card for that year in 1991 and 1992. And to get a chance to perhaps work in another chamber. I decided that i wanted to work for Justice Antonin Scalia. If you knew my background and my family coming would not have been your first guess. So why is it that in 1991, i wanted to work for Justice Antonin Scalia. It is the thing that i think most law students can understand. Leading judicial opinions as a judge myself is usually not a lot of fun. I think this is where a lot of lawyers acquire the habit of taking more coffee than is good for them. These are not Charles Dickens novels. Caffeine as we get you through. How refreshing when youre doing this to come across a Justice Antonin Scalia. And just they stood out. It in that quest for truth and the honesty. So i couldve cared less the Justice Antonin Scalia was a contextual list. Her living constitutionalist when originalist. All i wanted to do is get to know him he seem like a lot of fun. But then i wanted to learn how to write like him. And its unrealistic the soviets. Try to learn to write is close to him as you could pray to do how i got to know him. And what i started working with him. And then of course, it was really easy to fall under his influence because his passion for getting his dedication to finding the right answer in making sure youre being honest about what is really going on in the case, not being afraid to secondguess yourself. And then of course, his passion for the writing. There is no way you could finish the year with him and not want to be a better writer. And so much of becoming a better writer is about wanting to be a better writer. He just couldnt come out of that experience without it. Its really interesting since 1992, so must been 30 years. That year and any times since, he would do something. I would hear him Say Something we talk about the case i would have this action, i would say this can be right he was say it so forcefully. It makes me want to push back. I cant tell you the number of times that happened. And then as i thought about it. Sometimes even a couple of years will go by. And so now, writing the introduction to this book. It was not hard for me to embrace it. I think it is right. I thank you so the only answer to destroy the federal courts i think hes been right all along. But i going back to the point, why this influence. I think it is something to do with the power of this idea and a remarkable of the capacity to express them so well. With this not a bad thing to know. If you have some good ideas and learn how to express them. You might have influence. Allen it reminds me of the importance of maintaining friendships with differing viewpoints freedom wondering how scalia squared his competitiveness with his collegiality on the court. Jeffrey good for you to stay competitive nest on the court. Mine think i was to do is to play on the court with him squash, once or twice a week and on the court he was very. I still to this day, was a little puzzled by it. I was not a very good lawyer at that point in my life but forgive my pride, as a decent athlete. There is also a lot younger. And tremor. [laughter]. And it was so funny to me that when we started playing squash, than he expected to win every time. I just couldnt get over it. And then i would give him some games. Because he didnt like to lose. [laughter]. But what i took from that, you might be taking from the story read he was maybe in the mid 50s, why did they think that they can be a 30 yearold person and squash. When the 50s person is a very good lawyer in the 30 yearold person is a. Good athlete. Why would he think that way. He thought he could do anything. And i just loved that about him and then the next day he wanted to like golf and then the next day, montana he didnt play golf. He decided he took it on he decided he would be the best at it and every time he thought he could do better. And then i thought will the area where he did excel in his opinion, plenty of times he had disagreements and even more so on Justice Ginsburg, of course they serve longer together. And all of those years and you want to get a glimpse for it. Its really quite jarring to read it his dissent in the u. S. Versus virginia case. That is the bmi case but the debate was whether they had to offer co education. That was the fight on the 14th amendment. Justice ginsburgs rights the majority, a landmark saying that you get rigorous scrutiny when it comes to gender classifications. In Justice Scalia writing the lead to sense that if all you had to look wet at where those two things, they would send you that these were friends. Those were very hardhitting opinions. I must say that when i heard they were friends, i was a little suspicious. Maybe this is my cynical side. He wondered if it was convenience, something of a dc relationship. Wouldnt hurt to have some friends across the aisle. He scratch my back and ill scratch yours. But i was wrong about that. They celebrated new years every year together. Thats not a friendship of convenience, thats what everyone new years. And they were not ruining new years. Theyre having a really good time. So what is going on. Why such as sincere friendship. While there were some things that they have in common that might be easy to overlook. They were both born in the 30s, one is a jewish woman, and the other catholic italianamerican enter born in the 1930s, and you decide you wanted to go into law, you probably are thinking that what you could do is the navy maybe get a job at one of the big farms. Both had brick ceilings. In a think they have that in, and. And the way Justice Ginsburg for the point once was i was a selfimprovement society was the way she put it. They both have a lot of respect for each others they should have in their legal abilities and they knew that if they thought something was wrong it would push back there was probably a good point there are truth there they had to come to bricks with. So i think it really helped each other. But i think the real point, that it came down to true affection. I know that Justice Ginsburg decently, she is quite shy. At the dinner table setting, its very hard to actually hear her voice. Shes not easy to get a laugh out of. My understanding is that not only could just escalate scalia could get her life he get her to stop laughing. So theres a real chemistry there. And if you watch the movie about justice pittsburg. Maybe this e second to the last facetoface meeting with the justice, in the spring of 2015. I go by the justice chambers to say hello and that after 15 minutes. Points to the roses on the table he said im getting at these roses to ruth. It is her birthday. I looked i said while justice thats a lot of roses. Ive been married 30 years and i dont think of given a total of 24 roses to my wife. And he can be a bit of a rice guy and he responded by saying we ought to try it sometime. I thought that was of noxious and the hated getting in the last word so i said, quite as much is the myself, i said what good of all of these roses have been you. Any consequence when you got her vote. And he said, with a lot of sincerity, some things are more important than votes and i think he meant it. And that wouldve been the last roses she got from him. That was before february of 2016. And thats before her next birthday. And i told her that story before the book came out and she similarly nuts. A few weeks before she died and said she misses the roses. That was a sincere friendship. They adore each other. The authority to others is facets of the families of the other. Allen you mentioned the justices writings earlier. Whenever an opinion circulated the first thing she did. What she was doing and read that opinion. And why does it seem so important that he had this year for language in an effort writing. Jeffrey first of all shes quite right about that phenomenon. And i was doing it after off the court. I would read all of the court opinions. Thats the first place i would go often party to because i wanted to see what he said party would also put it clearly. You feel like you knew what was going on. It so i wondered where this came from. I wonder this i was cooking for him. I was the one thing that i wanted to get out of the year is what is the secret to his writing. And is there any way to acquire it. He did have advantages, has father was a professor and spoke several languages. His mother was an educator as well. Maybe an only child, not just in family with the whole generation. A lot of love funneled in. Whenever he wanted to god. Maybe it helped i dont know. I will say this. I was on a collison friends some friends the other day about it. And i found myself wondering, i wonder if one reason he became such a great writer is that he started out the such a as such a great speaker. He did a lot of acting in high school. So he really loved theater. It i think he loved the stage. He could be a bit of a ham. And if you saw him speak you realize how comfortable he was on the stage and how much he liked the energy of the room. Any had a capacity for pacing and sound. And of course it wouldnt be surprising with his background in theater producers sometimes wonder, and doing the work for this book, i read a lot of his early speeches. And some were better written than even some of the earlier articles. Maybe theres something there. The other thing which is nice for all of us to hear. Because when law and do a lot of writing. It never got easy for him. He used to say, he hated fighting. Love having written. I think he said he hated it because he had a high standard. Any new equality was was it wasnt. And i also said that hes the first italianamerican of the u. S. Supreme court today didnt want to be the last. I suspect the work even harder at it once he was on the bench. Any comparative is high quality throughout. Theres something about some of the opinions in this what they dont have any parallels to what he had done. He didnt rise to the occasion and he worked very hard on it. Another story consistent with your point about the year for language. As well as the eye for it in the written page. One instance in one case during the year i was clerking for him. My coeditor i had given him a draft opinion the night before and he did a lot of work at home. We have floppy disks rated so you take the floppy disks home. And presumably after the kids went to bed, he would do work in the evening. Then he comes back in state, and brought all of the carson talk about the case. Thats my thought was going on. I was little bit on and choose my case after all. I was in a good mood. So like a mace some what optimistic in a dramatically takes a floppy disk and puts it into the Computer Drive and prints out a sevenpage and current dissent. And proceeds to give us a dramatic reading of it. My first reaction, i went to a first reaction was negative. Hannah first was what happened to all of this good stuff ive done targeted gems all gone. He had taken my straw and he turned it into gold. I was crushed. And perhaps, connected to that initial reaction was. Natural reaction of really who you think you are. Without things to do. You dont we dont need to hear you deliver it aloud and the way you look at this, and think this is a shakespeare thing and its not. And this is law. But the real message from that experience was like joy he had taken and written well. And then nancy delivered it, paying attention to the lines in his writing to speak. And often things are written to be read aloud. So theres a lot of different ways to think about that. With us of some of them. Allen you have a favorite opinion. It. Jeffrey one of the things that i think you might enjoy about the book is found myself enjoying doing the work for the book is i thought i knew his opinions. I would come across because i thought i know this paragraph and i know this smile. Okay that was there. I remembered it but they dont come across as of the paragraph and realize that it is so good and i never thought about that. Then anticipate this problem that developed in this other line. So once my evasive answer is to say what is truly fun about the justices writings is that every encounter is known as a freshness to it. As a link 300 page book. You can read into settings so to speak. You find yourself coming across things you havent heard him say before. And you flown over it before. It to opinions, to make law, instead of complaining about somebody else making law. Something to majorities, and plenty of pride in and parked correctly so were crawford for small. The confrontation clause case where crawford had a case called roberts which was the balancing test to decide whether there was a confrontation clause violation. Where is it very pragmatic and historical very nontaxable. And he writes this decision. In his very original. He asked conservatives and liberals joining him. Pennies approving it. And the ritualism doesnt inherently favor the government. Quite the opposite party to practice one of any criminal procedures is so fascinating that he became one of the leading criminal procedure authors of opinions that help criminal defendants and then we had the nixon administration. What you would expect. He liked that opinion and i love that opinion is a nice opinion to illustrate. And there originally was designed to get to neutral outcomes. In a rulebased approach. Its not about policy. In another majority, with each of joy and the fact all nine members of the court are engaged in the original inquiry. I was the case where five members were doing originalists in the other four were constitutionalism. All nine of them were original is impaired in the meant something to him. And one of the things about morrison versus olson in the independent counsel case, they have all of these lines. If in just such wonderful lines. It and i like that case for something more than he tells you about. It makes you realize his courage and his backbone. This is the end of his second year in the court. It is an eight one decision. The chief Justice Rehnquist probably is the closest friend on the court at the time writes the majority. And is no slouch on administration of law and separation of powers. You might have said the best conservative in the country that point. Injustice still he is writing this hard hitting dissent in an eight one case. And then you read that and you go on my gosh read this is not a fellow who goes long to get along. Think there is a truth. His going to find the truth and even if it is a close friend ginsberg rents klesko if he has to say they are totally wrong. He will say that. He never thought there was a real division between your friendship and your ideas. He fled the golden rule. And sometimes it is incorporated idea behind the golden rule is to have them do unto others as you do unto you. He thought that he was doing that with his opinions. He wanted people to come back an

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