"Don't Poke Scalia"

Justice Scalia says stupid things during oral arguments at the Supreme Court. Lawyers cannot help but poke fun. The result: an angry, red-faced Scalia, "reducing the time in which advocates might address more open or sympathetic justices."

• [jaytkay]

  I would be the last person to defend Scalia, but the lawyer’s job is to win the case and that *always* means deference to the judge. Always. It’s their courtroom, you just visit it.

  • [Anonymous]

    jaytkay said: “I would be the last person to defend Scalia, but the lawyer’s job is to win the case and that *always* means deference to the judge. Always. It’s their courtroom, you just visit it.”

    NO. It is the people’s courtroom and it is long past time that judges quit acting like pompous asses. Scalia, in particular, needs a reminder.

    • [Anonymous]

      NO it is the justices courtroom – there are no term limits nor any real redress for the people there. The justices, once in, are about as untouchable as they get because there is no way to give them the reminder you speak of

• [Ernunnos]

  In that courtroom, Scalia is a judge, not the judge. It might well be worth pissing him off if it makes the other eight laugh. If he’s being that obnoxious, there’s a high probability he wasn’t going to find for you anyway.

  Basic rule of grifting and religious proselytizing: don’t waste your time on a skeptic. Even if you could eventually bring him or her around, that’s time and energy you could have spent on several more gullible people.

  • [Anonymous]

    @Ernunnos #5: “It might well be worth pissing him off if it makes the other eight laugh.”

    This is only true if you assume the other justices are as immature and petty as you are. If, on the other hand, you assume that the other justices, including the liberal ones, believe the Supreme Court should be taken seriously and act professionally, you’ll piss them all off. Including the ones who might have agreed with you.

    • [Ernunnos]

      Oh get off your high horse. We’re talking about a body that has Scalia on it. These are men and women, not gods. And in this case, it’s the justice instigating the unprofessional behavior. If the rest of them can’t see this, and take that into account when considering a lawyer’s remarks, we all have much bigger problems.

      • [Anonymous]

        Ernunnos:

        Again, it’s not the lawyer’s job to regulate the Supreme Court while he’s arguing on behalf of a client.

        I doubt you would find this all that amusing or acceptable if the Supreme Court ruled against you in a matter you found to be critically important just because your lawyer couldn’t exercise a little self control.

        I don’t care if they ALL are a bunch of jackasses that are at least as unpleasant as Scalia. If you are a lawyer arguing in the Supreme Court, you don’t have to like ANY of them, and you don’t have to respect them, either.

        But you’d better pretend, and smile while you take any BS they choose to dish out, because you’re getting paid to win. Not point out personality defects.

        • [Ernunnos]

          But you’d better pretend, and smile while you take any BS they choose to dish out, because you’re getting paid to win. Not point out personality defects.

          Presumes having no backbone is the best way to win friends and influence people. Further presumes that every other member of the court – or at least a majority – highly values said lack of backbone, and disdains the ability to argue boldly. Now, that may be a good assumption. Maybe the process is designed to give us justices who are so insecure that they can’t tolerate facing anyone but “yes men”. But if that’s the case, it’s a sad state of affairs.

        • [Anonymous]

          “Presumes having no backbone is the best way to win friends and influence people. Further presumes that every other member of the court – or at least a majority – highly values said lack of backbone, and disdains the ability to argue boldly.”

          No, it presumes that the client would rather win the case than be able to brag that his or her lawyer really stuck it to Scalia.

          You’re not there to “argue boldly” with the justices or a judge. You’re there to argue with the opposing counsel.

          Moreover, what these lawyers did wasn’t being “bold”. It was being flippant and indulging their own egos. There are ways to make your argument that don’t involve sarcasm and provocation. And those are the ways that are effective.

• [Anonymous]

  @Ernunnos #3:
  The lawyers aren’t being paid to provide a sense of perspective and a brake on Scalia’s behavior. They’re being paid to win a case for their clients. Period. Moreover, their smart remarks are not provided at a personal cost. The cost is being borne by their clients — clients who are only marginally interested (if at all) in making Scalia behave to your standards.

  They should be fired and censured. Not because they were disrespectful toward a Supreme Court justice that you happen to dislike, but because THEY DID NOT REPRESENT THEIR CLIENTS TO THE BEST OF THEIR ABILITIES.

• [Anonymous]

  It is our view that if a lawyer cannot articulate in simple terms the essence of their case in four or five sentences, he or she does not properly understand the case.

  Well, that explains why we never get any intelligent rulings on matters of any real complexity.

• [The Chemist]

  Part of the issue is that people already know how Scalia will decide, and so they write him off as a lost cause and will try to use him as a springboard in argumentation rather than a hurdle. This is especially true when Scalia makes such asinine comments all the time.

  Whether or not it’s a good idea is a question of judgement on the lawyers part. They are trying to win a case, but you can’t afford to be meek in front of the Supreme Court since you’re arguing something presumably important. You have to strike a balance, and it’s not necessarily always immediately clear to a lawyer if what he’s saying will help or hurt his case while he’s saying it. Obviously a good lawyer will avoid gaffs, but everyone makes mistakes.

  IANAL, but I think I have some common sense about persuasive techniques.

• [Brainspore]

  This is why it’s a shame that they never let cameras in for Supreme Court cases- I’d really like to see what Scalia looks like in full angry-baboon-mode.

  • [Sean Blueart]

    That why God made Adobe photoshop.

• [phisrow]

  Wow, just more evidence that Scalia is a prick.

• [dragonfrog]

  Not so much, if you read the article – in the cited cases, he said something slightly goofy, and a lawyer said something really rude, unnecessarily pissing him off, and prejudicing their clients’ cases.

  Anyway, that’s not really the point of the article, it’s really about all the things lawyers should keep in mind, and examples of mistakes from prior cases, where a lawyer’s delivery, as opposed to their legal theory, weakened their case.

  “Don’t poke Scalia” is a catchy title, but it makes a very small part of the article.

• [Ernunnos]

  I don’t like this advice. It may be correct in the individual case, but consider the effect if applies universally. Scalia never faces a snarky reply. He only receives extreme deference, no matter how outrageous he becomes. Imagine how much worse he’d become.

  These lawyers are providing an external good (A general sense of perspective and a brake on Scalia’s behavior) at a personal cost (their own time before the court on a particular case).

  In this respect, they’re the opposite of corporations who attempt to privatize profits and socialize (externalize) costs. (eg. Dumping waste in a local river in the dead of night and letting the public clean it up to reduce costs of processing it and enhance profits.)

  They should be lauded!

• [Chris the Tiki guy]

  Unless you’ve got “CEO” or “R” after your name and a net worth in the millions (or enjoy eating kittens), There’s no way Scalia will find for you. Write the sonuvabitch off and try to make your case to the justices that actually have more than just a reptilian brain.