Sutton, an honor to have him down. He flew in last night, right through the storm, and so were grateful that his flight made it here safely and that we are able to have this event today. Judge sutton is a judge of the u. S. Court of appeals for see six inch circuit where he has served since 2003. Nominate i by george w. Bush, former solicitor general of ohio, been in private practice, has clerked for several judges, including Justice Scalia, the subject of his new book. So, the occasion for todays event is the essential scalia. That is the new book that the judge suton edited with ed whelan, another friend of us who has been here some spoken to this chapter about another scalia book. So were all but scalia in this chapter. Jut sutton evidence his law degree from the ohio state university. He has served as chair of the federal judicial and Conference Committee on the rules of practice and procedures. The was appointed to that position by chief justice john roberts. He has taught constitutional law and other legal subjects at a number of universities and in fact was teaching at several universities right now. One benefit to the pandemic is we have zoom and other forms of Online Education so opportunities are able to have judge sutton as a professor without him having to be there present in person. So, that is a tremendous benefit to the Legal Academy at large. Judge sutton, thank you for being here today and thank you for talking to us about your new book. Ill start by something we talked about in the car on the way over, which is just in in, Justice Scalias influence on you individually and philosophically. Yes, first of all thank you for inviting me. Its great to be here. Live, not on zoom. So im really glad were here and being cautious and so forth. Its really i have a lot of fond memories coming to movement it feels as if my career got started here soon after i left the ohio solicitor generals office, then attorney general bill pryor hired me to handle cases in u. S. Supreme court, and happily he did not yet have a solicitor general so that was my window of opportunity. That position had been filled any earlier im not sure what would have happened in my career put it was fortunate to get to know bill and so many fine people in the Alabama Attorney generals office. So its a lot of fun do come here and fun to come back. So ive been think bought this a lot. We have been talk about the boom with other people, and talking to someone the other day and they said im starting to think Justice School ya has become more influential since he died than he was while he was living. Thats an odd thing. How could that be . What might explain the impact he is having and why he is so essential part of the conversation but the courts, originalism and textualism, and i feel like my own path to getting to know Justice Scalia offers a little bit of an explanation. So, i theres a lot autobiographical but i came from a pretty progressive family, new england. My first president ial election, 1980, i voted for jimmy carter to give you a skins of things. Learned about the u. S. Supreme court through Linda Greenhouse and the new york times, by the time i went to law school in 1987s was mainly apolitical. But i had leaping they would have been in a pore progressive direction could not have told you what originalism or textuality. When i started or by the time i grad baited. Did read robert borks book, the tempting of america and i was fortunate enough to get a clerkship at the Supreme Court, the author was from Justice Powell who was then a retired justice. Im retired justice the court gets one law clerk. Was his one law clerk for that year, 1899192 and get to decide to work with another chamber, an active justices chamber and i defend wanted would bork wore Justice Scalia and if you know my past that wouldnt havent been your first guess. So why is it that in 1991 i wanted to work for Justice Scalia . Well, this is the thing think most law students, understand. Reading judicial opinion is usually not a lot of fun i. Think this is where lawyers acquire the habit of drinking more coffee than is good for them. These innovator Charles Dickens novels. Caffeine gets through you, how refreshing when youre doing this to come across a Justice Scalia majority opinion, dissent or concurrence, and it they stood out for the lively unless of the writing, the honesty, the quest for truth. I could have cared less whether Justice School where was a textualist, i a living constitutional list or originalist. Wanted to get to know him. Seemed like a lot of fun. But then he really wanted to learn to write like him which thats unrealistic but so be it. Trying learn to write as close to him also you could that is how i got to know him. That is why i started working with him. And then of course it was really easy to fall under his influence because if passion for getting it right, hid his dedication to finding the right answer and make sureow youre being honest, not being afraid to secondguess yourself and even evolve on occasion and then his passion for the writing. No way you could finish a year with him and not want to be a better writer. So much of becoming a belter writer is wanting to be a better writer and could couldnt come out of the experience without it. Its interesting since the clerkship, 1992, been am 30 years, that year in many times since he would do something. Id hear him say something, wed talked but a case and id have a reaction, Justice Scalia, cant cant be right and heed say so force film. I suppose im a little contrarian and to have member sake something forcefully makes me want to push back and i cant tell you the number of timed that happened and as i thought about of a couple years would go by and a id go thats really good point. And enough in wry this introduction to this book, it wasnt hard to embrace textualism and originalism. I think its right. The only answer to avoid destroying the federal courts and he has been right all along but i think going back to point, why this influence . I think it has something to do with the power of his ideas and his remarkable capacity to express them so well, and thats not a bad thing to know, that if you can have some good ideas and learn thank you express them you might have some influence. Justice kagan wrote a kind forward to the book and reminds me the importance of maintaining friendships among people of differing viewpoints and i wonder how scalia squared his competitiveness which his collegiality on the court and as his friend. Do good to say competitiveness on the clerk. One Motor Vehicle jobs was to play squash with him once or twice a week and on the court he was very competitive. And 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 i was a decent athlete, and i was also a lot younger, and trimmer, and he was so funny to me when we started playing squash he expected to win every time. I just couldnt get over it. Was just and then i would give him some gains because he didnt like to lose, and i boyfriend what i took from the storior, might be taking from that story why would a maybe mid50s think they can beat a 30yearold person in squash when the 50s person was just a very good lawyer and the 30yearold person was a pretty good athlete and okay lawyer. He thought he could do anything. I just loved that about him. He thought. I we decided the next day we would play golf, he did not play golf. Despite the casey martin decision which is an amazing decision. He he decided to take it on he would decide he would be the best at it and every time he would have thought he could do better. So when you read these opinions, where he did excel, plenty of timed had very serious disagreement is withjustice kagan and even more so Justice Ginsburg. They served longer together. Been on the d. C. Circuit together and then on the u. S. Supreme court all those years and can he you want to get a glimpse for it. Its quite headsnapping and jarring to read his dissent in the u. S. Versus georgia virginia case, the case where the debate was whether they had tougher cosexual education there at vmi and that whats fight under the 14th amendment. Justice ginsburg writes the majority. Its a landmark decision, saying you get rigorous scrutiny when it comes to gender classifications. Justice scalia writing the lead dissent. If all you had to look at were those two things, it would stun you that these were friends. Those are very hardhitting opinions, and ill must say when i heards they were freshes i was a little suspicious, maybe this is my slightly cynical side. I wondered if it was a friendship of convenience, something of a d. C. Relationship where it wouldnt hurt to have friends across the aisle, you scratch my book ill scratch yours, but i was wrong. They celebrated new years ever year together. Thats not a friendship of convenience. Thats a good way to ruin new years. And they were not ruining new years. They were having a really good time. So what is going on . Why such a sincere frontship . I think there are some things they had in common that might be easy to overlook. They both born in the 30s. One is a jewish woman, both by the way in new york city, rose in new york city. The other catholic Italian American, if youre bon in the 1930s you and you decide you whatnot to good into law you probably are thinking the best you can do is maybe, maybe, get a job at one of the big firms. So they both had to break ceilings and i think that they had that in common and then the way Justice Ginsburg put the point once, it was a selfimprovement society was the way she put it. That they both had a lot of respect for each other as they should have and their legal abilities, and they knew that if Justice Scalia knew it Justice Ginsburg thought there was something wrong or would push back there was probably good point there a truth he had to come to grips with. So i think they really helped each other, but i really think at bottom the real point was it really came down to true affection. Know Justice Ginsburg is quite shy at aedine table set. It has hard to hear her voice. Shes not easy to get a laugh out oft and the murdered Justice School ya could get her to laugh, he cant get her to stop laughing. And so they had there was a kim the and Marty Ginsburg if you watch in the movie about Justice Ginsburg and relationship with her husband, its beautiful relationship. Was an extrovert so maybe something there so my last time this happened, this is maybe my second to last facetoface meeting with the justice so that would have been spring of 2015. Im in d. C. For a meeting go by the justice chambers to say hello and were done after 15 minutes and he opinions to two dozen roses on the table and says, i got to give these roses to ruth. Its her berth day and i go, wow, thats lot of roses. Ive been married more than 30 years and i dont think ive given a total of 24 roses to my wife, and he can be a bit of a wiles guy and he responded by saying, well, jeff, you ought to drive it sometime. I throughout that was obnoxious and i hated giving he hedge the last word so if said, quite on knocks shoesly myself, what good have all these roses done you . Youre buying her 24 roses a year. Guest find me one 54 case of any consequence where 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. So that that would have been the last roses she got from him. Because that was before february he dies february 2016 and that is before her next birthday and i told her that story before the book came out, and she sent me a lovely note a few weeks before she died and said how much she millses the roses. So that was misses the roses. That was a sincere friendship and they adored each. Other they adored each others spouses if the families loved each other and its not a bad lesson. You mentioned Justice Scalias writing style earlier. Justice kagan makes the point in her book that whenever a scalia opinion was circulated the first thing she did was just drop what she was doing and read that opinion. Scalias writing has been praises by friend and foe alike. What does it seem to important he had this ear for language and a knack for writing . Yeah. First of all, sheets quite right about that phenomenon. I have been doing i was doing it even after i left the court. I would be truth be told i read all the Court Opinions but that would be the first place id go you want to see what hed say, pit clearly, felt like you knew what was going on. So where does this come from . I wondered this the year i was clerking for him, and i was the one thing wanted to get out of the year is what is the secret to his writing and any way to acquire it . And she did have some advantages. His father was professor of romance languages. He spoke several languages. That doesnt hurt. His mother was an educator. Maybe an ohm child of that family and the whole generation a lot of love into scalia. What he wanted he got. And maybe that helped. I dont know. I will say this. I was on a call with some friends the other day, and i found myself wondering, i wonder if one reason he became such a great writer is. That he started out as such a great speaker so heres where im going with that. He did a lot of acting in high school so he really loves theater and he loved theater, i think he loved the performance, the stage. Might even say he could be a bit of a ham. And i will say if you saw him speak and i had the chance to see him speak many times you realized how comfortable he was on a stage and how much he liked the energy of the room, drew on the energy of the room, and just had a real capacity for pacing and sound and how it sounded which wouldnt be surprising with his background in theater. I wonder in doing the worker in book i read a lot of his early speeches and i might even have said the early speeches were better written than the early articles so that might suggest it. Theres something there. The other thing i might say, which i think is niles for all of us to hear nice for all of to us hear given were in law and do a lot of writing. Never government easy for him. He used to say he hated writing but loved having written, and i think he said he hated it because he had a High Standard and knew what quality was and what it wasnt, and i also would say he first Italian American on the u. S. Supreme court. Didnt want to be the last. And i suspect he worked even harder at it once he was on the bench and if you compare his d. C. Circuit opinions to u. S. Supreme Court Opinions, high quality throughout, no surprise, but to me theres something but the opinions in this book that dont have any parallel to anything he had done so he and i rows to the occasion but he did work really hard on it. One other story which is consistent with your point about the ear for language as well as the eye for it on the written page. One year during one instance and one case during the year i was clerking for him with ed whalen, my coeditor, he id given him a draft opinion the night before. He did a lot of work at home, back then we had floppy disc and would take the floppy disc home and do some work in the innings and that die comes back the next day and the brought all the clerks in to talk put the case is what i thought was was going on. A little on edge, my case. And he he is in a good mood so that made me somewhat optimistic he dramatically takes the floppy disc, put disk, puts in the Computer Drive and prints the dissent and gives us a dramatic reading of it, and my first reaction i had two recollection. I would say pretty negative. The first was what happened to all the good stuff id done . And except for an i the and of there it was all gone help had taken any straw and turned it into gold. I was a little crest fallen on that and then perhaps connected to that initial reaction was pretty natural reaction of really who do you think you center we have things to do and we can read it. We dont to hear you deliver it allow, and you look as if you this will this is shakespeare soliloquy. Its not. This is law still. But the law real message from that experience wag seeing what joy he took in having written well, and then as he delivered it, you know, paying attention to the lines, and he was writing to speak. And i think his opinions often are written to be revved aloud, and so read aloud and theres a lot of different ways to think but that. Do you have a favorite opinion. One thing about Justice Scalia and you might enjoin in the book because i enjoyed this and doing the work for the book, thought i knew his opinions. Thought i was an expert on his opinions. And i would come across and id i thought, i know the key paragraph in this one, i snowy ill smile. That was there i did remember that. But then ill come across this other paragraph and realize, oh, thats so good. I never thought about that and that really anticipates the problem that has developed in this other line so in one sense my evasive answer to say what i is fun but his write is is eave encounters is new and has a freshness and theyre only 300 page book, you can read it in two sitting, and youll just find yourself coming across things you hadnt heard him say before or you had blown over before. I was ill tell you twomans. He had pride in, i think quite correctly so, were crawford, first of all. Thats the confrontation clause case where, you know, that crawford overrules a case called roberts which had used a balancing test to decide whether there was a confrontation clause violation. It was very pragmatic, very ahistorical and very nontextual. And suddenly crawfords in front of them, and he writes this 72 decision. Its very originalist. Hes got conservatives, liberals joining him. Hes, of course, proving its a criminal procedure case that originalism doesnt inherently favor the government, quite the opposite. In fact, this is one of m