“Have you ever heard a turkey gobble?” Justice Scalia asked me during a visit to his chambers. “It’s a very strange sound, like a wooden rattle. [You] hear that far away and then make sounds like a hen to induce [the turkey] to come closer and closer. Finally, he sticks his head over a log, and you have to take your shot, or else you’ve lost him. Turkeys are very wily creatures. They have superb eye-sight and they’re very cautious. You get one shot. If you miss, the whole day’s ruined.”
When I asked Justice Scalia in an interview last year about his combative style during oral arguments, he defended himself by making comparisons with other justices. “I don’t think it’s true that I am the most talkative,” he said, adding that such distinction would go to Justice Breyer, who asks long hypothetical questions. Then Scalia became more animated and said, “You ever hear Ruth excoriate somebody who is arguing a … case? She can be really tough.”
A professor at Gettysburg College last week said she had heard that the Justice Scalia had never hired a single female law clerk. On several radio shows, I’ve been asked about Scalia and Opus Dei. Then there’s the assertion I hear constantly that Justices Scalia and Clarence Thomas vote in lockstep.
On many controversies (duck-hunting with Dick Cheney, for example), Justice Scalia is guilty as charged. But not on those above:
1. Justice Scalia has, in fact, hired several women clerks over the years, some of whom have gone on to prominent positions in academia, such as Joan Larsen at the University of Michigan. It is true, however, that clerks for a majority of the justices, including Scalia, have been overwhelmingly male (and white) through the years.
I know exactly where I was when I first saw the headline of an ABC news story earlier this month that said, “White House Prepares for the Possibility of Two Supreme Court Vacancies.” I was in the San Francisco radio studio of Ronn Owens about to go on the air to talk about Justice Scalia, the Citizens United case and current term. Owens said the ABC story had just appeared on-line that February 4 morning and predicted the retirement subject would draw calls. “Two vacancies?” I said doubtfully. “Really?” As people who have since read the posting by longtime ABC producer Ariane de Vogue know, it said: “Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health.”
I received enough reaction from the post on that snowy February 10 regarding whether journalists should call law clerks for information that I have a sequel. (See “But Would the Supreme Court Law Clerk Have Taken My Call?”)
I could write about great snowstorms I have known, from Chicago in 1967 to Washington, D.C., in 1996 (a journalistic favorite because Chief Justice Rehnquist insisted on starting oral arguments right at 10 a.m. before all justices had made it in) and then declare how these storms don’t hold a candle to what’s happening now in the nation’s capital. (A stunning 54.9 inches for the winter!) But everyone has a blizzard tale this week, so on to something from the law school circuit:
Since I’ve been on the road talking about Justice Scalia, I’ve consistently been asked about the fact that six of the nine justices are Roman Catholic and about how that affects the Court’s opinions, particularly those of Scalia. I devoted a chapter to Scalia and religion — Passions of His Mind — and, despite how touchy the intersection of personal belief and judicial views can be, I am ready to field these questions.
I’d known from my research for American Original that the first big assignment of Assistant Attorney General Scalia in the Ford Administration in 1974 was an opinion determining whether Richard Nixon owned the tapes and documents sought by Watergate prosecutors. But I found on a recent trip to the Ford Library, where I obtained a declassified memo, that another early assignment was nearly as tricky.
Supreme Court Justice Samuel Alito considered his Senate Judiciary Committee hearings so painful that for months after his 2006 confirmation he would try to avoid the Hart building where the nomination hearings were held. “I cross to the other side of the street,” he said. “I quicken my step until I’m well past the building.”
It’s likely Justice Alito now feels that way about the Capitol, where his disagreement with President Obama on Citizens United v. FEC during the State of the Union was seen by a national television audience.
As legal commentators continue to debate last Thursday’s decision in Citizens United v. Federal Election Commission, I want to add a few observations related to Justices Scalia and Stevens. As Stevens read his poignant — sometimes halting — dissenting statement from the bench, he noted that the “seed that flowered” in the majority opinion had been planted by dissenters in the 1990 Austin v. Michigan Chamber of Commerce. In his written opinion Thursday, Stevens took specific aim at Scalia– an architect of the view that prevailed last week.