Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Our Lunch with Justice Scalia

Many of us were moved by Supreme Court Justice Antonin Scalia’s passing last month, recalling his transformative legal theories, colorful writing style and forceful personality. The Justice had visited Minnesota several times during his long tenure on the Court. One of his last visits was to the University of St. Thomas on May 11, 2015. The Justice was in town at the MSBA’s invitation to discuss his book, Reading Law: The Interpretation of Legal Texts, with co-author and legal writing guru Bryan Garner. Before his talk a few of us had the unique opportunity to sit with the Justice over lunch. These are the recollections of two of those at the table who observed firsthand the Justice’s charm and obvious intelligence. We also listened in as he made colorful comments on occasion that mirrored his writing style.

Also present at our table was Robert Vischer, dean of the University of St. Thomas Law School; Phil Duran, former MSBA president; Irene Kao, president of the Minnesota Asian American Pacific Bar Association; Dyan Ebert, MSBA Council member; and Dennis O’Malley, managing partner at Lindquist & Vennum. We knew we were in the presence of an important person when Justice Scalia sat down—holding a Diet Coke. Dean Vischer pointed out that St. Thomas has an exclusive-vendor agreement with Pepsi, so the Justice must indeed be powerful. Scalia smiled but did not respond.

Chief Judge Cleary introduced himself and mentioned that he had argued before the Supreme Court early in Justice Scalia’s career at the Court. The Justice showed minimal interest. Cleary then noted that the Justice had written the Court’s majority opinion in the case (much more interest), striking down a St. Paul hate speech ordinance in a prosecution for cross burning in R.A.V. v. City of St. Paul. Now, very interested. Scalia remarked, “Very important case. The opinion is cited all the time.”

The Justice recounted how he argued only once before the Supreme Court as an assistant attorney general and was surprised by the lack of questioning by the Justices. “I was only asked three questions, all by J. Byron White. Very frustrating.” He pointed out that “Bill Brennan and Thurgood Marshall seldom asked questions.” He took credit for changing the Court’s willingness to question litigants during oral argument, but added, “Now we ask too many questions.” Someone pointed out that Justice Clarence Thomas didn’t. The Justice agreed, saying “I tell Clarence before every oral argument ‘don’t let them off so easy,’ but he won’t change; too stubborn.” (Ironically Justice Thomas broke 10 years of courtroom silence when he posed questions during a Supreme Court oral argument two weeks after Justice Scalia’s death. Scalia noted that Justice Elena Kagan was particularly good at asking questions during oral argument (“short and to the point”).

At lunch, he talked about the importance of good legal writing, saying that when he was a member of the Harvard Law Review, “some of the other students were smarter” but “no one could write better than I could.” We asked about his writing process at the Court. He always had his law clerks do the first draft of a legal opinion. He then worked off their draft and made it his own. “I wouldn’t do it any other way.” How did he view his law clerks? “‘You’re fungible.’ That’s what I tell them. It isn’t true but that’s what I tell them.”

It didn’t take much time for the conversation to turn to the state of legal education. Justice Scalia was very critical, complaining that law schools fail to properly train lawyers. He felt law schools had retreated from the traditional core, required curriculum. In his view any class that started with the title ‘Law and . . .’ “wasn’t worth anything.” The Justice was particularly adamant that law schools should have a required course on the First Amendment. Dean Vischer tried to defend law schools generally, with limited success.

The Justice’s well-publicized fondness for poker came up. He recalled that as a young lawyer at Jones, Day in Cleveland, he was asked to interview prospective associates. He found the process unhelpful in making a selection and would rather have played poker with the candidates. Someone asked, “Are you saying that playing poker would tell you more about what you needed to know for hiring?” Scalia replied, “Yes.”

Near the end of lunch we asked which former Justices he missed the most. “Two. Byron White and David Souter.” He liked Justice White because he was “cantankerous.” A role model? Justice Scalia smiled and recalled that White would always ask a question at Supreme Court hearings and after the lawyer finished his answer he would remark, “But of course you would have to say that.” We all laughed. Scalia agreed that his and Justice Souter’s styles could not have been more different. Yet the two became close, in part because they sat next to each on the bench during oral arguments for so many years. He never saw Souter anymore “because he hates Washington D.C. I would be surprised if he even traveled to Boston.” Not surprisingly, Justice Souter made the trip to Washington D.C. for Justice Scalia’s funeral.

After 45 minutes it was time for the Justice and Bryan Garner to deliver their talk on Reading Law. He thanked each of us for lunch and was gone, whisked away by the U.S. Marshals Service.

It was a memorable day and one that we will both recall fondly. Justice Scalia treated everyone at our table with respect and seemed sincerely to value our opinions (whether or not he agreed with them). He was an excellent story teller, enjoyed a good joke, and delighted in giving each of us an intimate, albeit brief, tour of his life at the high court.

Edward Cleary is Chief Judge of the Minnesota Court of Appeals and a former president of the Ramsey County Bar Association. Richard Kyle is a Ramsey County District Court Judge and immediate past president of the MSBA.

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