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Scalia Embarrasses Lawyer During Oral Args, Was it Warranted?

By William Peacock, Esq. on January 15, 2014 | Last updated on March 21, 2019

Justice Scalia's reputation precedes him. He's a bit crass, a bit of a grouch, and during oral arguments, he makes Professor Charles Kingsfield seem milder than Elle Woods.

Still, his actions during oral arguments in Marvin M. Brandt Revocable Trust v. United States, a case no one except Property Law professors cares about, even managed to surprise regular SCOTUS watchers.

A Very Embarrassed Lawyer

Appearing before the Supreme Court is, for many, a once-in-a-lifetime opportunity. So why, pray tell, would you be reading your "oral" arguments?

That was Justice Scalia's point, when he interrupted Steven J. Lechner, the Vice President and Chief Legal Officer of the Mountain States Legal Foundation, who was making his first appearance before the Supreme Court.

Lechner opened his arguments with a prepared statement that stretched for a bit more than a page of the oral arguments transcripts, before Justice Scalia stepped in:

LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act --

JUSTICE SCALIA: Counsel, you are not reading this, are you?

... [silence]

... [painful silence]

... [crickets]

JUSTICE BREYER: It's all right.

Lechner then continued where he left off. Lyle Denniston, over on SCOTUSblog, recapped the painful silence. "Lechner didn't answer, simply standing silent for a lengthy embarrassed moment. Lawyers at that lectern are, it seems, supposed to extemporize."

Criticism Warranted?

Professor Josh Blackman called it a "dick move," and argues, "Just because he wears a robe does not entitle him to be a jerk, and embarrass the lawyer for something like this."

Robert Thomas, of the Inverse Condemnation Blog, who, along with co-counsel, submitted an amicus brief, urged everyone to "give the guy a break."

"We're all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes," he argued. "Heck, we won't even go down to muni court naked (so to speak)."

True, but to be Devil's (Scalia's) Advocate, this is the Supreme Court we're talking about here. If you get a shot at the Major Leagues, you better show up even more prepared. Notes, citations, and quotes for when exact language is necessary are fine, but if he couldn't be bothered to memorize a speech, criticism may be warranted.

That being said, was it really necessary for Scalia to call him out, mid-oral argument? Probably not. Scalia could've spared the man's dignity by doing what he always does -- interrupting with a question about the case, rather than a question about reading notes. Either way, the prepared speech would've ended and the grilling would've commenced.

Did Scalia go too far? Tweet your thoughts to @FindLawLP.

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