A DISCUSSION OF LAW AND JOURNALISM

A 2L Goes to Washington

Justice Scalia is in the middle. Dara Poltrock is third from the left in the purple blouse.

By Dara Poltrock

When I learned my Modern Supreme Court class would be going to hear oral arguments at the Supreme Court and then meet Justice Antonin Scalia, I could hardly contain my excitement.  For a law student this is about the same as handing a golden ticket to an American Idol contestant and telling her that she’s going to Hollywood.

Before those of you who don’t spend your days reading Supreme Court decisions mentally check out of this article, let me explain…

As a second year law student, I read Supreme Court decisions more than I talk to my friends. I know how they think and how they come out on decisions.  For example I’ve learned that if a right is not explicitly stated in the Constitution, Justices Scalia and Thomas are hard pressed to find the right exists.  And I’ve learned that Justice Ginsberg generally votes with the liberal wing of the Court.  Simply put—the chance to meet the justices felt like the chance to meet a movie star.  I had to share my experience with LASIS readers.

No one had to tell me to be quiet when I entered the courtroom.  Although the justices had not yet taken their seats, the presence of the nine empty chairs was enough to silence the room.  This was the same room where oral arguments for the landmark cases Roe v. Wade and Brown v. Board of Education had been heard—clearly this was not a place to chat. The courtroom is granite from floor to ceiling and there are American flags on either side of the Justices’ panel.  There is no question about it:  the courtroom itself commands your attention.

Procedurally the oral arguments were very formal—a buzzer sounded once it was time for the lawyer to begin his argument and when time was up. And it felt a bit odd seeing the Justices whose words I’d read so much and so often, in person,   Justice Scalia, the same man who is known for his scathing criticisms of his fellow justices’ opinions, was funny and charming.  Justice Thomas was irreverent—swerving back and forth in his chair and avoiding eye contact—at one point I was sure he was sleeping.

The questioning style of the justices varied, too.  Justice Ginsberg was the least forgiving—if a lawyer did not give an answer she wanted to hear, the lawyer knew and he felt defeat.  His tone of voice shifted from aggressive and confident to timid and insecure.  As for Justice Kagan the newest justice, it was easy to imagine her as a Law Professor at Harvard University:  Instead of asking questions she drew hypotheticals and asked the lawyers how each situation would play out.

In the first case we heard, Duryea v. Guarnieri, the issue was whether the lower court was wrong in finding that state and local government employees may sue their employers under the First Amendment who are fired in retaliation for    complaining to the government about matters of private (as opposed to public) concern.  Initially I expected this to be an exciting argument—typically First Amendment issues are hot to pics—but it turned out not to be.  Being that this was “a question of first impression”, or an issue never previously ruled on, the Justices’ were hesitant in creating a new legal rule.  This is what’s known as “judicial restraint”. As a result there was less banter between the lawyers and the Justices, which made for a less engaging argument

The second case was where I really got to see the show I came for.  The issue in Fox v. Vice was whether defendants can be awarded attorney’s fees for frivolous claims in an action in which the plaintiff also had non-frivolous claims.  I didn’t think an oral argument about attorney’s fees would be captivating—I stand corrected. Almost every Justice asked a question and Chief Justice Roberts had the courtroom in stitches when he effortlessly brought an attorney to consider the possibility that he had filed a frivolous claim.  (You had to be there).

Watching the oral arguments was so entertaining that when the ending buzzer rang I almost expected the Justices to bow.  Instead they quickly collected their notes and hurried out of the courtroom.  For most people, that was the end of their Supreme Court experience—if it had been the end of mine I would have been thoroughly satisfied.  But fortunately my classmates and I had the opportunity to have a personal meeting with Justice Scalia.  Yes, it was like Elton John was appearing with us on the American Idol Stage.

To be able to sit in a room with a Supreme Court justice and discuss his legal philosophy was an experience unlike any other.  In the legal community Justice Scalia is known for his opposition to the concept of a living constitution whose meaning changes over time.  He is also well known for his aggressive writing style in his opinions.  As Conor Clarke of Slate put it recently, “Scalia has a taste for garish analogies and offbeat allusions—often very funny ones…Scalia’s opinions read like they’re about to catch fire for pure outrage.” Although Justice Scalia was friendly and easy to talk to, when the conversation veered towards his legal philosophy his fiery personality emerged.  He was passionate about his disdain for the concept of a Constitution that is always changing and he referred to certain Court decisions as “pure spinach.”

What is perhaps most impressive about Justice Scalia is his ability to convince a room of people that his way is the only way.  He speaks with such conviction that you find yourself thinking, “I can’t imagine how I ever had a different opinion.”  And even though he is a member of the elite group of people who have served on the Supreme Court his last words to my class were, “Your life, whether it’s a success or a failure, should not depend on your job.”

After I left the Supreme Court behind, I boarded the train back to New York City, my head still filled with memories of the experience.  Several days later, as I’m working on finishing this week’s reading assignments for class, I’m able to picture the room, the process, and the Justices in a way I couldn’t before.  My time in a law student’s Hollywood was fascinating and well worth the trip.

Comments

4 Comments »

4 Responses

  1. NYLS grad says:

    I took the course last year and it’s great. The trip was wonderful. And that’s Prof. Jim Simon on the left in the picture, folks!

  2. Jaclyn Pivtorak says:

    What a great article! Not many can say they got to chat with a Supreme Court Justice! Thanks for sharing!

  3. An NYLS Student says:

    Great article, Dara! I’ve heard great things about this class.

    And I love that quote about life not depending on your job. For all that I disagree with his ideology, Scalia just may be the smartest guy on the entire bench, and I’m very envious that you guys got to sit there and pick his brain.

  4. Sarah says:

    One word: jealous. It sounds like you had a wonderful experience. I will definitely be trying to take that class next year.