Transcripts For CSPAN2 Jeffrey Sutton The Essential Scalia 2

Flew last night right through the storm so we are grateful he made it here safely and that we are able to have this event today. A judge of us court of appeals and with the circuit where he served since 2003 and nominated by george w. Bush and is a former solicitor general of ohio include for several judges including Justice Scalia the subject of his new book. The location for todays event is the essential scully the new book that jeffrey sets in edited so we all about scalia on this chapter receiving his law degree from Ohio State University and served as chair of the Commerce Committee rules of practice and procedure appointed by chief Justice John Roberts and taught constitutional law and other legal subjects universities and his teaching at several universities right now. We have zoom and other forms of Online Education so the kids can have him as a professor without him having to me present in person. That is a tremendous benefit to the Legal Academy at large. Thank you for being here today and talking to us about your new book. What influence did he have a new individually and philosophically . Thank you for inviting me its great to be here live on zoom. [laughter] im glad we are here and being cautious. A lot of fond memories are coming to mind and my career got started here i feel soon after i left the ohio Solicitor Generals Office they hired me to handle several cases of the us Supreme Court. And did not have a solicitor general so that was my window of opportunity if that position had been filled in the early im not sure what would happen to my career but i was fortunate to get to know bill on so ive been thinking about this and the other day to say Justice Scalia has become more influential since he died then when he was living. Thats an odd thing. How can that be . What might explain the impact he is having all of the courts individualism and contextualism, i feel my own path to get to know Justice Scalia offers a little bit of an explanation. A little autobiographical forgive me but i came from a pretty progressive family in new england the first president ial election in 1980 i voted for jimmy carter i learned that the Supreme Court from the New York Times went to law school 1987 i was there mainly a political i have leanings more in the progressive section i cannot tell you what original is a were contextualism meant when i started or even when i graduated. So reading the tempting of america getting a picture of the Supreme Court Justice Powell was then to retire justice they get one law clerk i get his clerk for that year in 1991 i decided i wanted to work with the Justice Scalia if you know my path and background that would not would of been the first guess. So why is it in 1991 i wanted to work with Justice Scalia . Something most law students can understand reading judicial opinions as a judge myself is usually not a lot of fun. This is where a lot of lawyers acquire the habit of taking more policy than is good for them they are not childhood novels. Thats what gets you through. How refreshing to come across the Justice Scalia majority defense or concurrence. They stood out for writing and the honesty and the quest for truth. I could care less that just as clear as a contextual was living constitutionalist. I wanted to do was get to know him number one. He seemed like fun but i really wanted to learn to write like him but that was and realistic as close as i could. That is how i got to know him and why he started working with him and for that course it was easy to fall under his influence because his passion to get a right and his dedication to finding the right answer to make sure you are being honest, not being afraid to secondguess yourself and then of course his passion for writing and theres no way you could spend your him and not be a better writer and you just couldnt come out of that experience without it. So from 1992, its almost been 30 years. And to hear him Say Something and had this reaction that Justice Scalia that cannot be right. I suppose im a little contrary and to have anybody Say Something forcefully and not push back i cannot tell you the number of times that happened but then sometimes a couple of years ago by and then you think that is a really good point. So now in writing the introduction to this book it wasnt hard for me to embrace contextualism and regionalism think that the only answer to destroying the federal courts and he has been right all along. Going back to the point why this influence i think it has the power of the ideas and its remarkable capacity to express as well. Is not a bad thing to know the many have influence. And wondering house to leah with his collegiality as the court and for his friend. If you to say is a competitiveness and wanting to play squash with him on the court he was very competitive. [laughter] and to this day i am still a little puzzled by it. I was not a very good lawyer at that point in my life but forgive my pride, i was a decent athlete. Also about younger. And a trimmer. [laughter] and is so funny when we started to play squash that he expected to win every time. I could not get over it. [laughter] and then i would give him some games because he didnt like to lose. [laughter] but what i took from that you may take from that story why would we be in his mid fifties think they could beat a 30 yearold and squash . He was just a very good lawyer in the 30 yearold was a good athlete he thought he could do anything. And decided the next day we would play golf. I did not play golf despite the casey martin decision which is an amazing opinion he did not play golf. He decided to take it on he decided he would be the best in every time he will do better so yes you are exactly what you read these opinions , the area that you do excel plenty of times with very serious agreements and even more so Justice Ginsburg they serve on your together on the dc circuit then the us Supreme Court all those years anyone to get a glimpse for it it is head snapping and jarring to read his dissent in weston versus virginia case when the debate was with the co sexual education that was the fight under the 14th amendment. Justice ginsburg rates the majority with rigorous scrutiny when it comes to gender classification before you had to look at where those two things and those are hardhitting opinions and i must say when i heard they were friends and i was clicking i was a little suspicious. May be my slightly cynical side thinking was a friendship of convenience. You scratch my back ill scratch yours. They celebrated new years every year. That is not a friendship of convenience thats a good way to a new years. [laughter] they were not. They were having a good time. So what is going on . Why such a sincere friendship and what might be easy to overlook both born in the thirties one is a jewish woman the other a catholic italianamerican born in the thirties deciding to go into law the best you can do is maybe get on the big firms so they both had to break ceilings. They had that in common a selfimprovement society. And have a lot of respect for each other as they should have with Justice Ginsburg that is something wrong been there was probably a good point that he had to come to grips with. But i really think that was breaking down i Justice Ginsburg is quite shy at a dinner table setting its hard to hear her voice. Shes not easy to get a laugh out of not only could Justice Scalia get her to laugh, he couldnt get her to stop laughing. [laughter] so there is a real chemistry there and Marty Ginsburg if you watch the movie about her relationship with her husband its a beautiful relationship something going on there. So the last time this happens maybe my second to last facetoface meeting spring 2015 and that i go by the justices chamber sue say hello and said they have to get the wilsons to ruth its her birthday i said thats a lot of roses ive been married 30 years and have given a total of 24 to my wife. He can be of a wise guy and said well jeff you ought to try it sometime. [laughter] i thought that was of noxious they hated giving him the last word so i said right of noxious the myself, what could have all these roses done for you finally any case of consequence did you get her vote . He said with a lot of sincerity some things are more important than votes. Think he meant that. That would be the last roses she got from him he died februar february 2016 and that was before her next birthday. I told that story before the book came out she sent me a lovely note a few weeks before she died and said how much she misses the roses. That was a sincere friendship. They adored each other. The families loved each other. So why does it seem so important . She is quite right about that phenomenon i said i was we are the Court Opinions only the first place i would go and to know what was going on. Where does this come from . The year i was cooking is any way to acquire a . His father was us the romance ning languages his mother was an educator he is an only child for the whole generation. Maybe that helped. I know. Was on a call the other day with some friends and i was wondering, wonder if one reason he became such a great writer is he started off as such a great speaker. Heres where i am going with that. In high school he love theater. I thank you love the performance and the stage you could say he to be a bit of a ham. I seen him speak many times there is a comfort as much as he liked the energy of the room and to have a real capacity the sound and that wouldnt be surprising with his background in theater. And to read a lot of his early speeches and those to even be better than those articles that might suggest theres something there. He used to say he loved having written and i think he said he hated it what the quality was in but it wasnt he didnt want to be the last italianamerican on the Supreme Court once he was on the bench with them Supreme Court opinions high quality throughout no surprise but theres something about those opinions on the book but he did work really hard on it. One other story that is consistent with your point that one year one instance in one case i was clerking with my coeditor i gave him a draft opinion the night before and to take the floppy disk home. And then to do some work in the evenings and then comes back the next day and did something he hasnt done before to bring in the clerks to talk about the case. And that made me somewhat optimistic personal Computer Drive that set the sevenpage concurrence dissent and gives a dramatic reading of it the first was except for the all with a the he took the star and it turned into gold and the connected to that initial reaction to you thank you are . We can really need to hear you deliver that allowed this is lost still but the real message from that experience and i see that it thing attention to the lines and those opinions are written to be read aloud and theres a lot of ways to think about that. And with Justice Scalia one thing he might enjoy about the book is i thought i knew his opinions i thought it was an expert and i word come across because i know the key paragraph, that was there. But then i come across another paragraph that so good i never thought about that so in one sense my evasive answer is to say every encounter is a new encounter you can read this and to settings and to find yourself coming across the things you havent said before on those majority opinions versus somebody else complaining about making law he had plenty of pride that is a confrontation clause case with the case the roberts with that balancing test of the confrontation clause of a historical and non contextual he writes his decision which is a lot of votes that is very originalist with conservatives and liberals joining him it is a procedure case that it originally does not favor the government for quite the opposite in fact this is one of many criminal procedures to become one of the leading criminal procedure offers of opinions to help criminal defendants thats not what you would expect so i love that opinion is a nice opinion to street journalism is designed with the rulebased approach and thats a lot closer that all nine members were engaged in the originalist and the other for a living constitutionalism and the independent counsel case it has all the great lines and they are just such wonderful lines i like that case more because it makes you realize that this is just the end of his second year of the court , eight one decision, chief Justice Rehnquist probably his closest friend on the court at the time writes the majority. He is no slouch on Administrative Law maybe the best conservative in the country at that point and Justice Scalia races hard hitting dissent . If you read that and then you say oh my gosh this is not a fellow who goes along to get along he will find the truth you is just a close friend he will say they are totally wrong and that was a real division between the friendship and ideas and he applied the golden rule to show you how doesnt always work but do onto others as you would have them do unto you and for Justice Scalia thats what he thought he was doing he wanted them to hit just as hard not everybody does that in quite the same way it is complicated but this isnt a sermon so we will move on. [laughter] i am curious about the dissenting opinion not because the number of opinions but the way he wrote the dissenting opinion so im curious as scalia could steal that title why was it important to register that opinion is a dissent . First of all hes not someone that would just go along to get along than that just wasnt his thing he didnt think ritualism and contextualism were principles that led themselves to compromise he would say how do compromise . You have the right answer the only compromises denying the truth the he world concur separately a lot to provide his own reasoning i think he liked in one sense. I think he was disappointed early on with the fifth or sixth on the court with the Abortion Case he was not happy to be writing those those with devastating losses to him. Because he did not think they were good for the country. So i dont think he would be happy with the moniker but this gets back to another way of thinking about it that i think he would embrace early on and around that term to realize he wasnt just writing for other lawyers or his colleagues in the case of the parties or for the Supreme Court bar he realized early on this may have affected his writing style he wanted the right so they couldnt take these out of the us reports they would be there if the professor wasnt teaching his defense it would be no within the majority so the way to feel a little better when it comes out the wrong way. Personally i havent been a judge for quite a while i am a fan to explain why were doing what we are doing. Keeps us honest and disciplines us and then we have to answer them and i think with Justice Ginsburg and Justice Scalia say it sharpens the opinions and makes them better. He did that for the court. But they did make them better in the reunions to bring them back once a year in the spring and that clerk class will present to him which was the us reports volume and each year he would tell you that was a good or bad year. That was a thin volume because he wasnt writing a lot of dissents a bad here was that the volume i was there for a very thick year. [laughter] i was not a very good clerk. [laughter] i should point out i clicked the same year as ed whelan and thats how we got to know each other he has been at the center of this one was speech and then so i only came in for this one. But if we can go to the two of us and he said something i didnt quite understand and said its arrant its the night to has look after me and he was not referring to me he was referring to ed whelan and in fact now i think about it he ignored me. But ed has been a defender Justice Scalias work just as uncompromising Everybody Needs a friend like that. You certainly done a lot of good work. Again when you surrender before anywhere else. Have you not gonna send some sensitive . [laughter]. I am making fun of myself. The Justice Scalia is often called the found original is on. I think thats the way he would have thought are there particular legal minds are schools of thoughts provision was before they have a name. He did not invent regionalism or contextualism but anyone that would say that would be missing the key point judges had always been using that in the last 60 or 70 years with the avantgarde the whole goal is to get us back to where we are doing and have a lot of historical support for that point with the first judicial review no one talks about the living constitution there were some to put those is in writing and language has meaning and it is rare that is fixed. So the people that he admired he should go out with frankfurter the greatest thinkers and disciplined about what they were doing it so interesting that frankfurter was a progressive liberal and comes on the core and recess even in the direction of his appeal. And then to get the sense of that. And republican. Because then following the law where it takes you so there is a lot of overlap they are. I dont have a sense i dont write frankfurter opinions a lot in that sense a lot but one that stayed on says a lot so with rehnquist and nancy before he became chief there was quite a bit of affinity and of course scalia cared about his writing. And jackson you would call more as the original list. But