U.S. Supreme Court
Scalia Apologizes for Wrongly Scolding Lawyer over Missing Statute
Posted Nov 14, 2008 9:23 AM CST
By Debra Cassens Weiss
A lawyer wrongly scolded in oral arguments by Justice Antonin Scalia for not listing a statute’s text in his brief got an apology by the end of the hour.
Lawyer Richard Bress was arguing on behalf of a death row inmate claiming the courts improperly weighed his claim of ineffective assistance when Scalia interrupted, Law.com reports. The publication said the conversation proceeded this way:
"Mr. Bress, this case involves Section 2254(d), right? Does that appear somewhere in the briefs? It would be nice to have it in front of me," Scalia said.
"Yes, Your Honor," Bress replied.
"I mean, it's a central thing the case is about. I cannot find it in any of the briefs," Scalia said. "Don't you think it's important enough to be in your brief?"
Law.com reports there was a moment of “awkward silence” before Bress simply continued with his argument. By the end of the session, Scalia had figured out that the brief did contain the statute and he apologized. "I'm grateful for your not throwing it in my teeth," Scalia said.
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Comments
jbolaw
Nov 14, 2008 11:09 AM CST
It’s demoralizing but too many lawyers must endure in silence abusive behavior by judges out of fear of jeopardizing their client’s case.
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mdw
Nov 14, 2008 11:27 AM CST
I mean, seriously, how else would someone handle that- um excuse me your honor, but the statute is in front of your face. Have you been thinking about retirement at all? :-)
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B. McLeod
Nov 14, 2008 12:33 PM CST
People (EVEN sometimes JUSTICES) do make MISTAKES. (ALTHOUGH, when they refuse, EN MASSE, to acknowledge same, THEN we call them “LAW”). I think it is COMMENDABLE that Justice Scalia did TAKE the STEP of CORRECTING himself, and ON THE RECORD. In point of FACT, there are FEW who would have the good GRACE to DO this.
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thatlawyerdudec
Nov 14, 2008 3:43 PM CST
I have watched Scalia in numerous arguments and he is tough but not abusive. The Attorney could have easily said “Your Honor I thought I included it at page 7” would have been fine with Scalia and it would not be throwing it in his teeth,. Justice Scalia is not above getting a laugh at your expense but he also chides himself when he errs. He may not be all things to all people, and you may not always agree with his writings, but face to face he is a gracious and good hearted soul with a great sense of humor and a great sense of duty. I hope the next time I go to see an argument, i am arguing for one of the pary’s in the litigation.
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Dick
Nov 16, 2008 11:59 AM CST
Wonder how carefully he read the brief if he didn’t know the statute was included. One would think that before he would chastise a lawyer in open court he would know for sure that the statute had been omitted from the brief and surely there were more important issued before the court.
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JR
Nov 17, 2008 10:42 AM CST
I argued a case before Judge Scalia when he sat on the D.C. Circuit. He asked me why we had not moved to dismiss. I answered that we had, but he had denied it on the motions panel. He took no offense and moved on. I think the lawyer here could have pointed to the page and politely said that the Justice could have found the statute there.
I agree with the observations that Justice Scalia, whatever one thinks of his jurisprudence, shows respect to attorneys and graciousness on the bench. I recall when a slip opinion mentioned that a colleague’s brief proved unhelpful on a side issue in the case. When our boss wrote a letter pointing out that this would cause harm to the person’s career, that passage got cut out of the D.C. Circuit’s published opinion., replaced by three asterisks.
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