An Embarrassing Supreme Court Moment

, Legal Times

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U.S. Supreme Court Justice Antonin Scalia
U.S. Supreme Court Justice Antonin Scalia

By all accounts, it was an excruciating moment at the U.S. Supreme Court on Tuesday.

A nervous first-time advocate began his argument by reading from a prepared statement, until the never shy Justice Antonin Scalia interrupted and asked: "Counsel, you are not reading this, are you?" The lawyer, Steven Lechner, froze and did not answer, staying silent until Justice Stephen Breyer broke the tension with these words: "It's all right."

The awkward episode came during arguments in the case Marvin Brandt Revocable Trust v. United States, a property rights dispute over the conversion of abandoned railroad rights of way into public trails. Lechner is chief legal officer of the Mountain States Legal Foundation, which represented the property owner in the case. Lechner has argued numerous cases in lower courts, and his name has appeared on more than two dozen Supreme Court briefs.

As news of Scalia's remark spread, commentators lined up on both sides. Supreme Court blogger, law prof and author Josh Blackman called it a "dick move," adding that "just because [Scalia] wears a robe does not entitle him to be a jerk, and embarrass the lawyer for something like this."

Land-use lawyer Robert Thomas also sympathized with Lechner at his Inverse Condemnation blog: "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."

But at Above the Law, Joe Patrice said Scalia did the right thing. "Good for Justice Scalia to shame the guy off his notes. From the rest of the account of the oral argument, once Lechner gave up on his crutch he did a decent job—Scalia just gave him the nudge he needed."

Cruel or not, Scalia's disparagement of a lawyer who read his argument was not just a whim or personal pet peeve; it is based on the court's own rules and traditions.

The late Chief Justice William Rehnquist, in The Supreme Court, a 1987 book about how the court operates, said of lawyers who read their arguments aloud: "This behavior is so egregious that it is rarely seen." The purpose of an advocate's oral argument, Rehnquist explained, is to "work his way into the judge's consciousness and make the judge think about the things that the advocate wishes him to think about." Establishing eye contact is a good way to begin that process, Rehnquist said, and "this simply can't be done while you are reading your presentation."

This sentiment is memorialized in the court's rules. Rule 28 states bluntly, "Oral argument read from a prepared text is not favored." And the court clerk's helpful guide to oral argument warns advocates on page 9, "Under no circumstances should you read your argument from a prepared script."

Lechner did not return calls for comment, and Mountain States president William Perry Pendley, who was in the court, declined to say anything about Scalia's remark. But Pendley did say he was surprised at the spotlight on the episode. "It was a bizarro world to wake up and see that discussion," said Pendley, adding that Lechner is "one of the most knowledgeable lawyers in the country" on the land issue before the court.

Pendley also said Scalia made a remark that was "far more humiliating" later in the argument when he scolded Anthony Yang, assistant to the U.S. solicitor general, for not knowing how much federal land was involved in the issue before the court. "It's incredible that there is no record in the Interior Department or anywhere else of what land the United States owns," Scalia said, according to the transcript.

"This wasn't just spirited questioning, it was a beat-down of the federal government," Pendley said. The government's lack of justification for the land policy at issue, Pendley said, should have been the focus of commentary about Tuesday's argument.

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro.

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