One does not forget one’s first argument before the U.S. Supreme Court. My own was October 7, 1986, the first Tuesday after the “First Monday” that year, which by tradition commences the Supreme Court Term. It was also Justice Scalia’s first term on the Court and I well remember his unrelenting and unforgiving grilling of a colleague of mine from the Solicitor General’s Office on that First Monday. And, unlike me, my colleague was a longstanding friend and acquaintance of the newly-minted Justice. He had been a student of Scalia’s at the University of Virginia School of Law, where Scalia had been a law professor, and then he had subsequently worked for Scalia in the Justice Department’s Office of Legal Counsel, when Scalia headed that Office as its Assistant Attorney General.
Needless to say, I took note with some understandable trepidation of what was happening in the courtroom that Monday and, like everyone else in the Solicitor General’s Office, I quickly knew that oral argument before the Court would never be the same with Justice Scalia on the bench. And we were right.
Even before Scalia arrived on the Court, one needed of course to be thoroughly prepared for a rigorous grilling. However, it was not unusual back then to have cases in which one was asked relatively few questions or even no questions at all. And when questions were asked, one could fairly assume one would have ample time to answer.
But once Justice Scalia joined the bench, what might at most have been a tough grilling quickly became more akin to the advocate’s equivalent of a bonfire. Spurred on by Scalia, the number of questions asked by the justices has steadily increased during oral argument. The average number of questions asked of both advocates averages around 100 in an hour-long argument and it is not unheard of to have the justices ask as many as 125 questions of a single advocate in 30 minutes.
Let’s just say oral argument before the Court is not for the faint-hearted. One can fairly debate whether the Court has gone too far, and its members ask too many questions and give too little time for answers. But it cannot be gainsaid that because of Justice Scalia, the quality of oral advocacy is far better today than before he joined the Court.
The same can be said for the quality of written briefs. Here too, there is more than a little room for debate about the validity of Justice Scalia’s particular views on textualism and his obvious disdain for all forms of legislative history. But he clearly made better lawyers of us all by insisting on more careful and precise readings of text and by exposing sloppy reliance on certain kinds of authorities that were, in fact, hardly authoritative at all.
I have my next argument before the Court this coming fall, and the argument will once again fall during that first week in October. The date will likely be almost precisely 30 years to the day from my initial appearance in October 1986. Justice Scalia has been a persistent presence in all my cases. The Justice was demanding, probing, combative, and at times, yes, mocking of my position when, as was often the case, it differed from his own. It is hard to imagine the Court without him. He will be missed.
Richard Lazarus is the Howard and Katherine Aibel Professor of Law at Harvard Law School.