As I didn't see the Underneath Their Robes blogger at the University Club, despite the Scalia-obsession particularly on display of late, I'll fill in. Apparently a Supreme Court justice appearance before a crowd of summer associates is the University Club's way of ginning up membership; they hosted such an event with Anthony Kennedy last year, and last week I found this in my email inbox:
The Board of Governors of The University Club of Washington, DC
Tim Sullivan, President; Laura Arth; Russell George; Peter Goldman; Barry Hart; Chuck Lawrence; Gary Lytle; Richard McBride, Jr.; Michael Olson; Steve Peer; Susanne Wegrzyn; Tom Wilson
requests the pleasure of your company at a reception featuring Associate Justice of the United States Supreme Court and University Club Member Antonin Scalia, in honor of your firm’s Summer Associates, to be held at The University Club on Tuesday, June 6, 2006 from five-thirty to eight o’clock.
(Attire: No denim or athletic shoes)
The University Club of Washington, DC
A tradition of excellence since 1904
Dining, Fitness, Spa, Overnight Accommodations & Private Events
1135 Sixteenth Street, NW, Washington, DC 20036-4885
I don't know what famous people were present, but the bar was open and the food was fairly good. After some non-legal conversation, discussion deteriorated and a couple of my colleagues and I were about to get into an argument over the Poway High 9th Circuit case. Fortunately, at that moment Justice Scalia and his two bodyguards were making their way to the podium. The president of the club gave a blessedly brief introduction, which Scalia corrected by saying that he had not originated the phrase "Hoya Saxa" while a Georgetown undergrad, but he did know what the Greek-Latin combination meant: "What Rocks." He told the worn joke about the lawyer who ends up in hell after choosing it based on the summer associate program, and the room laughed as heartily as though they'd never heard it before. (I rarely tell jokes due to my bad memory and timing, so any joke I've told multiple times has got to be a chestnut.)
I don't remember much of his initial remarks beyond that; Scalia graciously took several questions instead of giving a canned speech -- though as later revealed, he had material -- requesting only that they not be about the new justices, whom he said were fine. According to my recollection, slightly dimmed by chardonnay, the first question came from a University Club man and was about the "increasing reduction" in the Court's caseload. Scalia disagreed that the caseload had grown any smaller recently, and said that while he thinks the Court could handle about 100 cases a year comfortably, it ought not go back to the original practice of being a court of errors that dealt with small matters like mudguards on interstate trucks. He found the criterion of taking cases dealing with a major federal issue, on which lower courts had disagreed, to be more in keeping with the Supreme Court's role as a guide to the lower courts.
A young man noted Chief Justice Roberts's praise of judicial minimalism, and asked how such an idea comported with Scalia's own philosophy. The justice said that he didn't think lawyers would really like for judges to be minimalists because of the lack of guidance this provided the lower courts and attorneys on what the law was. He gave as an example the recent eBay case in which the Court unanimously held that injunctions were not the default remedy for patent infringements, but then split into several concurrences on whether this declaration would make much of a difference. Incidentally, I think this case among others (the very brief dissent in Lawrence, the concurrence in Trinko) indicates a more minimalist tendency in Justice Thomas, who didn't write a concurrence because he had written the majority opinion.
The first question inspired me to ask Scalia's opinion about the proposal to make cert memos public. He made a surprised face and said that he wasn't aware of any such proposal's being afoot. [audience laughter] I said that it was something I'd read from an article by Judge Posner in the New Republic, so perhaps it wasn't quite a proposal. [even more laughter while my ears turned red] Scalia said that if we took all of Richard's proposals, we would be auctioning babies, and after the fresh round of laughter had died down, answered only that he didn't think his law clerks had any reason to be worried.
A man asked who Scalia thought would win, and who be the most gracious loser, in a game of squash among himself, Senator Arlen Specter and another senator, I think Leahy. Scalia said that he certainly would not be the gracious loser, as he didn't even like gracious losers -- people who lost should not be happy about it. He added that Specter was always after him for a squash game, but he hadn't played for a long time due to White House security measures that had made the drive from the University Club home after such a game too onerous.
A woman whom I couldn't see but who had what sounded like an African accent demanded to know Scalia's views on citing international law, about which she had read but wanted to know "from the horse's mouth." Scalia waved a set of papers at her and said that he had the full speech on that topic before her, and for the standing-room-only crowd to sit down if they wanted to hear it all. He added that even for someone who believed in a living Constitution whose meaning was determined by nine lawyers, citation to foreign law didn't make sense; evolving standards of decency ought to be those evolved by Americans, not non-Americans. He made the usual point about how such citations were selective, giving the example of abortion, which in America was "on demand" but not so in nearly every other country. (I don't think this is wholly accurate; while theoretically women in European countries often are supposed to have to justify their abortions by health or economic necessity, this doesn't seem to be an enormous bar to women's getting abortions when they want them. I prefer the U.S. regime, which at least is honest enough to acknowledge that abortions in the first trimester are legally unrestricted.) Scalia attributed the trouble to the popularization of human rights law, which is international and thus seems to oblige American courts to take an interest in what a Zimbabwean court deems to be a human right.
One man asked how Scalia would have voted in Baker v. Carr, and Scalia said he would have voted against "one man, one vote," because to demand such an electoral scheme of the states, while retaining the decidedly disproportionate makeup of the Senate, made no sense. He asked the questioner why this case rather than the usual one originalist-textualists like Scalia got, which was desegregation. Scalia admitted that he agreed with Harlan's Plessy dissent and thus would have voted for the "good side" in Brown, but that he had no problem with coming down on the "bad side" if that was what the Constitution demanded.
Another man asked if Scalia would support making the Constitution easier to amend, so people wouldn't be stuck with erroneous judicial determinations of what it meant. Scalia agreed that the only part of the Constitution he wished he had the power to change was the one that provided for the amendment process, which he thought too difficult. However, he cautioned against making amendment as easy as it was in many European nations, which required only that a statute be passed, an election occur, and the statute be reaffirmed by the subsequent legislature.
There were more questions that I can't remember at the moment, but the last one was memorable: the first questioner asked Scalia to give advice to the many wannabe lawyers present. Scalia at first said, "Work hard," then seemed to contradict that with advice he said the attorneys who ran the firms at which the summer associates were working wouldn't like. He then launched into a critique of modern Biglaw practice, in which young attorneys worked long hours and failed to fulfill their responsibilities aside from those to the firm and the law. "I live in Virginia, and I look around at who coaches Little League, who the soccer coaches are, and they ain't lawyers. And that's a darn shame." The total devotion of young associates to the law meant they no longer contributed their talents to their communities. By way of contrast, Scalia described John Marshall's civic roles while Chief Justice: leader of the local militia and an expedition to find a canal route, founder of a social club that he attended at least once a week.
I wondered if Scalia had aired this diatribe against overworking associates before a family audience, as at least one of his children is a partner at a major D.C. law firm.