Scalia’s Rapid-Fire Questioning Transformed Oral Arguments

Posted on 02-18-2016 by
Tags: Industry Trends , Latest Headlines & Stories , Law 360


The article below has been republished in full courtesy of Law360, written by Emily Field.

The incisive, often biting, wit of the late Justice Antonin Scalia often elicited laughs in the courtroom and outrage from the public, but his presence on the bench forever transformed how advocates present their arguments to the country’s highest court.

While oral arguments at the U.S. Supreme Court used to be somewhat staid and rote, attorneys credit Justice Scalia— who died Saturday at age 79 — with introducing a lively questioning style that keeps attorneys on their toes, often barely able to get a word in edgewise as the justices fire off questions.

Known as the high court’s funniest judge, some of Justice Scalia’s jokes, such as a quip that appeared to support a protester during same-sex marriage oral arguments last spring, drew public ire. But Justice Scalia’s humor often illustrated what he thought of a litigant’s argument and provided much-needed levity in the court, attorneys told Law360 Sunday.  

“One of the great legacies he left is a hotter bench,” said Benjamin Horwich, litigation partner atMunger Tolles & Olson LLP, who has appeared before the high court 10 times. “More specifically, it’s given permission to all justices on the court to speak what’s on their mind openly during arguments.”

Lawyers appearing before the nine are now routinely peppered with questions and often have little chance to speak, attorneys said.

“As difficult and challenging as it is sometimes, I’d much rather be in Justice Scalia’s world where folks on the bench are telling you what they’re thinking and giving you a chance, at least a sentence and a half to respond,” Horwich said. 

Justice Scalia, who was appointed to the court by President Ronald Reagan in 1986, also used his questioning style as a way to talk to his fellow justices, asking a question of an attorney as a way to make a point to one of his colleagues, attorneys said, a practice now common on the high court. 

“He liked to challenge everyone, wanted to test their positions and quite frankly show them how wrong they are in his view,” James Ryan of Cullen & Dykman LLP said.

Justice Scalia didn’t shy away from making extreme comments or jokes over the years, once remarking that a protester shouting that backers of same-sex marriage can “burn in hell for eternity” was “rather refreshing, actually,” during oral arguments for Obergefell v. Hodges last April.

“He thought it was a good idea to make things engaging and entertaining in order to draw people in and make them think,” said senior partner John Maalouf of Maalouf Ashford & Talbot LLP.

Whether or not they agreed with him, he kept people’s interest in the issues, Maalouf said.

“That was the great gift he brought to the court. He got people thinking.”

Justice Scalia was known for his “robust” sense of humor on the bench. A 2012 study by Boston University law professor Jay Wexler showed that he provoked the most laughter during the 2011-2012 Supreme Court term. Justice Scalia garnered 83 laughs from the bench. Justice Stephen Breyer, who came in second, earned 56 laughs.

His line of questioning in a 2013 property rights case, at issue in which was whether money was protected under the takings clause of the Fifth Amendment, highlighted what he thought was the “absurdity” of counsel’s answers, Paul Beard of Alston & Bird LLP said. He argued against the federal government.

This article has been republished in full and is courtesy of Law360. For the latest breaking news and analysis on energy industry legal issues, visit Law360 today.

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