Distance and fall other guidelines and regulations so thank you for your patience and following those. We have here today judge jeff sutton, he flew in last night, right through the storm, and so were grateful his flight made it here safely and were able to have this event today. Judge sutton is a judge of the u. S. Court of appeals for the six inch circuit where the served since 2003. Nominated by george w. Bush. He is a former solicitor general of ohio, hes been in private practice, has clerked for several judges, including justice ask Justice Scalia, the subject of his new book. The title of the occasion today is essentialal scalia. Were all about scalia in this chapter. Judge sutton revved hi ba from William College and law degree from the ohio state university. Chair of the federal Judicial Conference Committee on the rules of practice and procedure, appointed to that position by chief justice john roberts. He has taught constitutional law and other legal sums at a number of universities and was teaching at several universities right now. One benefit to the pandemic is that we have zoom and other forms of Online Education so students 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. In general, Justice Scalias influence on you individually and philosophically. Yes, sure. First, thank you, allen, 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 enemy rid coming to montgomery, i fell since my career got start here soon after i left the ohio solicitor generals office, then attorney general bill pryor hired me to happen cases in u. S. Supreme court and happily did not yet have a solicitor general to that was my window of opportunity. Had that position been filled earlier im not sure what would have happened in my career but i was fortunate to get to know bill and so many fine people in the bam Attorney Generals Office, so fun to come here and fun to come back. Ive been knocking pull out this a lot. We have been talking notice book with other people, and someone said im starting to think Justice Scalia has become more influence shall since the died than he was while he was living. Thats an odd thing. How could that be . And what might explain the impact and why she is so central a part of the conversation but the courts, originalism and textualism, and i feel like my on path to getting to know Justice Scalia offers a little explanation. So, i theres a little out autobiographical. I came from a progressive family in new england. He first president ial election in i voted for jimmy carter. I learned about the report in the new york times. By the time i went to law school in 1987 i was apolitical. If i had leanings they would have been in a more progressive direction. Could not have told you what originalism or textualism meant when i started and maybe even by the time i graduated. I tide read robert borks book, the tempting of america and when i got a clerkship at the Supreme Court the author was justice paul, who was then a retired justice. Each retired justice gets one law clerk i was his one law quicker for that year, 199192 and you get to decide to perhaps work with another chambers, and i decided i wanted to work for Justice Scalia, which if you had known my past and background and my family that wont have been your first guess. So why is it that in 1991, i wanted to work for Justice Scalia . Well, this if the thing i think most law students, understand, reading judicial opinions as i have toed a miss and the author is usually not a lot of fun. This is where lawyers acquire the habit of drinking more coffee then is good for them. Those are not Charles Dickens novels. Caffeine gets you through. How refreshing to come across a Justice Scalia majority opinion, dissent or concurrence. They stood out for the liveliness of the writing, the honest clerks the honesty, the quest for truth. So i could have cared list if he was a textualist, constitutionalist, he seemed like fun and i wanted to learn to write like him. Its unrealistic but so be it. Try to write as close as i. Could thats how i go tot know him and why i started working him, and then it was easy to fall under his influence because his passion for getting it right, his dedication to finding the right answer, making sure youre being hospital about what is going on in the case, noting afraid to secondguess yourself and maybe even evolve on occasion, and then his passion for writing. No way you could finish a year with him and not want to be a better writer, and so much of becoming a better writer is wanting to be a better writer and you just couldnt come out of that experience without it. Its really interesting since the clerkship in 1992, almost been 30 years, that year and many times since id hear him say something, talk but a case and id have this reaction, Justice School ya, cant be right, and heed say is so forcefully which i suppose im a little contrarian to have anybody say anything forcefully makes me want to push back and i cant tell you the number of times that happened, and then is a thought our sometimes even a couple years would go by id go, oh, thats really good point. And so now in writing the introduction to this book, it wasnt hard for me to embrace textualism and originalism. I think its right. I think its the only answer to avoid destroying the federal courts and i think hes been right all along but i think going back to the 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 hack she good ideas ideas ad learn how to express them well you might have influence. Justice kagan wrote a very kind forward and it reminds me of the importance of maintaining friendships of people with differing opinions and i wonder how Justice Scalia s competitiveness on the court. One of my jobs was to play squash with him and on the court he was very come betive, and i competitive and i still to this day was a little puzzled by it. 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 it was so funny to me when we started playing squash he expected to win every time. I couldnt get over it. And then i would give him some games because he didnt like to lose, and i but what i took from that story, you might be taking from that story why would a what was he, maybe mid50s thick they can bate 30yearold person at squash when the 50s person was just a very good lawyer and the 30yearold person was a pretty good athlete and an okay lawyer. Why would he think that way . He thought he could do myth. Could do anything. If we defended the next day to play golf he did not play golf despite the Kaycee Martin decision, if he decided to take it on he would have decided to be the best at it and every time he would have thought he could do better. So when you read these opinions, this is the area we did excel, plenty of times he had very serious disagreement width Justice Kagan and Justice Ginsburg. They send longer together. On the d. C. Circuit and then the Supreme Court and you want to get a glimpse for it. Its headsnapping and jarring to read his dissent in the u. S. Versus virginia case, the case where the debate was whether they had to offer coeducation cosexual education there at vmi and that ways the fight under the 14th epidemic. Justice ginsburg writes the majority, a landmark decision, essentially saying you get rigorous scrutiny when it comes to gender classification. Justice scalia writing the lead dissent. I if all you had to look at those two things would stunow theyre good friends. Very hardhitting opinions and when i heard they were friends the year i was clocking i was a little suspicious. Maybe this is my slightly cynical side. I wondered itself if was a friendship of convenience, d. C. Relationship, where i wouldnt hurt to have friend across the aisle you scratch my back ill scratch yours, but i was wrong. They celebrated new years every year together. That is not a friendship of conveniencethats good way to ruin new years. So, they were not ruining new years. They were having a good time. And so what is going on . Why such a sincere friendship . 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 from new york city. If youre borne in 1930s and decide you want to go into law you probably are think thing best you could do is maybe, maybe, get a job at one of the big firms. So they both had to break ceilings. Think that had that in commonality and the way Justice Ginsburg put the point once, they it was a selfimprovement society is 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 if Justice Ginsburg thought there was something wrong or would push back there was probably truth he had to come to grips with. So i think they helped each. Other but i really think at bottom the real point was really came down to true affection. I know Justice Ginsburg decently, shes quite shy, in a dinner table setting, she is hard to actually hear her voice. She is not easy to get a laugh out of, and my understanding it that Justice Scalia could get her to laugh and couldnt get her to stop laughing. And so they had a a real chemistry and marty ginsburg, if you watch the movie about Justice Ginsburg and her relationship to her husband, its beautiful relationship he was an extrovert so maybe something going on there. Put my last i think the last time this happens. Maybe my second to last facetoface meeting with the justice, spring of 2015, and im in d. C. For a meeting go by the justice chambers to say hello and then after 15 minutes and he points to two dozen roses on the table and says, jeff, i have to give these roses to ruth. Its her birthday. 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 wise guy and he responded by saying, well, jeff, you ought to try it some time. I thought that was obnoxious and i hated giving i them laword so i said, quite obnoxiously myself, what good have all these roses done you . Bogey 24 roses a year. Find any 504 case where you got her vote, and he said, with a lot of sincerity, some things are more important than votes vs and he meant it. That would have been the last roses she got from him. That was before february, he dies february 2016 and thats 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 behalf she died saying how much she millses the roses. So that was it. That was a sincere friendship and they adored each other, they adored each others uspss. This families loved each other. Its not a bad lesson. You mentioned Justice Scalia yas writing school earlier. Justice kagan make Thursday Point when a scalia opinion was circulated the first thing she dad was drop what she would was doing and read that opinion. His writing have been operates bid friend and foe alike. Why is so the important he had this ear for language and a knack for writing. Yeah. First of all shes quite right about that phenomenon. I have been doing i was doing it ever after i left the court. I would be truth be told i read all the Court Opinions but that is the first place id good. You want to see what he would say, put i it very clearly, felt like you now was was going on. So where disthat come from . I wondered this the year i was clerk, for him. One thing wanted to get out of the year, the secret to this writing and any way to acquire it. He had some advantages. Hit father was a professor of romance languages and he spoke several languages. His mother was an educator as well. Maybe an only child of not just that family but the whole generation, a lot of love funnel ed into nino schoolarch what he wanted he got. Maybe that helped. Will say this. I was on a call with some friend 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 great speaker. So heres where im going with that. He did a lot of actioning in high school and loved theater and he loved those at the. I i think he left field the performance, the stage, might even say he could be a bit of a ham, and i will sea if you saw him speak i had the chance to see him speak many times you realize 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 sound which wouldnt be surprising with hi background in theater. I read 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 i think nice to hear pitch were in law, it never got 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, he knew what quality was and what it wasnt, and i also would say he is the first it tall machine 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 his u. S. Supreme Court Opinions, high quality throughout, no surprise, but to me theres something about some of the opinions in this book that dont have any pair throw anything he had done. So he rose to the occasion and 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 wherein page. One year during uninstance in one case during the year i was clerk can for him with ed whatten, my cooed a for, i had given him a draft of the opinion. He worked at home and we had glovey desks and he took it home and after the kid went to build head do some work in the evening, and that day comes back the next day and did something he hadnt done before which is bring all of the clerks in to talk about the case is what i thought was going on. A little bit on edge. It was my case. And he is in a good mood and that made my somewhat optimistic and he dramatic which i takes the knoppy disk, puts into it the computer drive, principles out his sevenpage concurrence dissent and proceeds to give us a dramatic reading of it, and my first reaction i had two reactions initially. Ed said pretty negative. The first was what happened to all the good stuff id done . Except for an a here and a the there it was all gone heed taken my straw and turned into it gold if was crest fallen on that. And then perhaps connected to that initial reaction was a natural reaction of, really, who do you think you center we have things to do and we can read it. We dont need to hear you deliver it aloud, and by the way you look at if you think this is shakespeare soliloquy. Its not. This is law still. Put the real message from that experience was seeing what joy he took in having written well, and then as he delivered, paying attention to the lines, and he was writing to speak. And i think his opinions often are written to be read aloud, and so theres a lot of different ways to think pout that but those are some of them. Do you have a favorite opinion . I thought i new his opinions and was an expert on his opinions and i would come across i thought, oh, i know the key paragraph in this one,en i know where ill smile. Yeah, that was. This 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 developed in this other line. So in one sense my evasive answer to day what is fund but the justices writings is every encounter is a new encounter and has a freshness to it and its only a 300 page book. You can read in two sittings, and youll gist find yourself coming across things you hadnt heard him say before or blown over before. I will tell you two opinions, majority opinions, nice to actually make law. As opposed to just complaining about someone else making law. So i think two majorities he had plenty of pride in, i think quite correctly so, were crawford, thats the confrontation clause case where that crawford overrule as case called roberts which is used the balancing best to decide whether there is would confrontation clause violation, pragmatic, historical and nontextual, and suddenly crawford is in frontthem and he writes a 72 decision. Thats lot of votes film. Very originalist. He has conservatives, liberals joining him. Hes approving its a criminal procedure case that originalism doesnt inherently favor the government. Quite the opposite. In fact this one of many criminal procedures. Its so fascinating he became one of the leading criminal procedure authors of opinions that helped criminal defendants and here we have an alum of the nixon administration. That not what you would expect. So i think he liked that opinion. I loved that opinion. Its a nice opinion to illustrate that originalism is really designed to get to neutral outcomes and a rule based purchase that isnt policy or ones world views. Heller another one, 5 40, closer. Took joy in the fact that all nine member of the court engaged in the originalist inquiry. Wasnt a case where five members were doing originalism and the other four living constitutionalism, all nine were doing originalism. That meant something to him. And of course morrison versus olson one think out more hisson this independent counsel case, has all the great lines and just such wonderful lines, i like that case more for Something Else it tells you about him. It makes you rea