Ethics Dunce: Law Professor Josh Blackman, Too Desperate To Take A Cheap Shot At Justice Scalia

Supreme Court Justice Scalia, though not quite to the absurd degree of Sarah Palin, is a conservative who inspires such visceral dislike from the residents of the American Left that he often inspires them to behave irrationally in their eagerness to express their contempt. Such was the case this week, when Scalia sharply rebuked a lawyer making his oral argument before the high tribunal in the case of Marvin Brandt Revocable Trust v. United States, a property rights dispute over the conversion of abandoned railroad rights of way into public trails. The advocate, Steven Lechner, was before Scalia and his colleagues for the first time, and began his argument by reading from his notes. This is not cool, and violates Supreme Court tradition, rules, and long-observed standards.

Tony Mauro, blogging at the Legal Times, explains:

“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.” The 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.”

Thus it shouldn’t have shocked any informed court observer—or law professor—when Justice Scalia interrupted Lechner and asked: “Counsel, you are not reading this, are you?”  The nervous and embarrassed lawyer froze until kinder, gentler, Good Cop Justice Stephen Breyer reassured him by saying, “It’s all right.”

Critics of Justice Scalia, who has the gall to be smart, articulate legal conservative who isn’t intimidated by media snipers who often have no idea what he’s saying, immediately took him to task for insisting that professionals working before the most prestigious and important legal forum in the country actually observe proper protocol. Prominent among them was law professor Josh Blackman, Assistant Professor of Law at the South Texas College of Law, who blogged,

“..this is a dick move by Justice Scalia. Just because he wears a robe does not entitle him to be a jerk, and embarrass the lawyer for something like this.”

“Something like this” meaning “not being prepared to argue before the Supreme Court and showing disrespect by not observing the rules and the traditions of the tribunal, unlike the last, oh, few hundred prepared and professional advocates who argued there…”

Based on this, I presume the following rebukes from Scalia would also justify Blackman calling him a jerk:

  • “Counsel, you are not wearing a Metallica T-shirt, are you?”
  • “Counsel, you are not drunk, are you?”
  • “Counsel, you didn’t just call us ‘justice dudes,’ did you?”
  • “Counsel, you are not speaking in a duck voice, are you?”
  • “Counsel, you are not twerking, are you?”

Scalia, like all the Justices, has a duty to uphold the Supreme Court’s standards, or the standards stretch, loosen, and vanish. I know liberals and progressives often like to see standards vanish, but that still doesn’t justify a law professor failing  to understand the importance of lawyers who dare to play in the law’s big leagues conducting themselves like the best and most knowledgeable professionals they are representing themselves as being, rather than bumbling, green tyros handling their first speeding ticket. (The first judge I argued before explained some things to me, too, and yes, it was embarrassing. And yes, I deserved it.) The lawyer’s gaffe communicated a lack of competence, diligence, preparation, professionalism and respect, and even so, Scalia hardly blasted him for it. Eight little words are not going to send Lechner to therapy, presumably. He goofed, and was properly called on it.

The dick move here was by Prof. Blackman, not Justice Scalia.


Sources: The BLT, Josh Blackman

39 thoughts on “Ethics Dunce: Law Professor Josh Blackman, Too Desperate To Take A Cheap Shot At Justice Scalia

  1. Justice Scalia was my faculty adviser while I was at UVA Law School. He was witty, intelligent, and did not suffer fools gladly. He made us work hard [I had him for Contracts and U.C.C.], and he was one of the three best teachers I ever had from grade school on.

      • “Critics of Justice Scalia, who has the gall to be [a] smart, articulate legal conservative who isn’t intimidated by media snipers who often have no idea what he’s saying”

        Justice Scalia’s critics include conservative Judge Richard Posner, .

        That Justice Scalia understands the need for courtroom decorum means that outbursts like this one call his ability to self-regulate into question:

        This, blessedly, did not happen in session but opens questions about his state of mind:

        People who knew Antonin Scalia when he was younger unanimously report having seen a sharp, well-disciplined mind at work. Several incidents like those above aren’t consistent with that history. Incipient dementia, if that is the cause of his problems, is compelling grounds for criticism and would make his resignation ethically obligatory.

        Reprimanding a lawyer, on the other hand, is indeed part of the job.

        • 1. How exactly is criticism from Judge Posner, a contrarian jurist on his own, related to my statements about media critics? Did I say that no one who does understand Scalia legitimately criticizes him? No. Did I say he couldn’t be legitimately criticized? No! (Posner’s a conservative only when compared to most liberal judges.) I repeat: the most vociferous critics of Scalia in the media couldn’t read one of his opinions all the way through and explain it on a bet.

          2. Uh, Fred? Andy Borowitz is a COMEDY WRITER (I went to school with him at Harvard); you quoted gag stories TWICE from “The Borowitz Report,” his satirical website, that would have obviously seemed like utter nonsense to you if you did not harbor your own biases and ignorance about Scalia, who is as far from suffering from any diminished capacity as a human being can be, if you listened to his recent performances in oral argument and read his opinions.

          3. You owe the Justice an apology for spreading false rumors, and also for not having sufficient respect to know Andy’s riffs were ridiculous. Are you embarrassed? Well, as Justice Breyer would say, “It’s all right.”

          • I dast not say this too stoutly, because I’ve been caught now and then myself, but Andy is is a skilled satirist, and it’s hard to mistake his intent: how could you have possibly thought those were real stories? If Scalia really had a meltdown like that, it would be front page news! (Yes, I’m rubbing it in. Blame Phlinn….he started it.)

          • ” as far from suffering from any diminished capacity as a human being can be”

            In which case I am wrong, and you are wrong, and Professor Blackman is right.

            If he is in control of himself, then running a Jack Benny routine during solemn deliberations ( until finally being cut off by the Chief Justice proves that he is not motivated by preserving the dignity of the Supreme Court. Such a motivation would justify hauling the lawyer up short. Otherwise it’s bullying.

            Let’s see, point 1: if your point is to say that the critics in the mainstream media are fools, rather than to defend Justice Scalia, then I can only agree.

            Point 2: yipes! I am suitably embarrassed. The care I put into throwing out things like his Holocaust remarks should definitely have gone further.

            • Wow. I have no words for how prissy you sound…

              You realize that they all make jokes from time to time, right?

              There is a classic one during a case involving a passenger of a car during a police chase where Scalia’s driving is fairly well mocked by – if I recall correctly – Justice Breyer.

            • Fred: honestly, your complaint is ridiculous. The Benny quote is part of cultural literacy; such things are routinely used as illustrations in court opinions, and I, as well as most lawyers, enjoy and appreciate them—plus they make valid points, as I believe I do when I quote Animal House or Blazing Saddles. There is nothing at all unseemly about humor in oral argument, and Roberts himself has used it. Furthermore, judges and lawyers have different standards, just as officers and corporals do. What the authority figure can do with impunity, the subordinate may not. A judge may reprimand a lawyer. Never the other way around.

              And that’s quite a comedown from a story about Scalia breaking down weeping because he was sick of gays. Me, I’d have dropped the argument.

  2. You called him Josh Blackwell just before the link to his blog, but mostly Backman. Feel free to delete this comment after correcting if you would like.

    • Fixed…thanks, Jay, Phinn…no, I’ll leave your kind corrections up to memorialize my shame. I called the guy everything BUT his right name, and I recall, as I was writing this, I was constantly reminding myself, “Now DON’T call him “Blackman”!” It’s a miracle that Backwell never got in there. Those early morning posts are dangerous, let me tell you. Just lost another one in a Word crash on this old laptop. It’s not a good day.

  3. All good points. The one word you left out: decorum. Like the T-Shirt comment, this is a matter of maintaining the decorum of the forum. I had an appeal hearing last week and hardly bothered to prepare anything written. I knew the case and I knew the questions they would ask and I don’t think I got through one sentence before the questions started coming. I sure would be nervous arguing before the Supreme Court, but, like you said, that is the time to engage the Judges (or Justices) and that is hard to do while you stay on script.

  4. “You aren’t talking in a duck voice, are you?” Heh heh… I love it.

    Just an observation though, when Good Cop Justice Stephen Breyer said that “it was OK”, Was it wrong for him to say that?

      • Yeah, what a bleeding heart! Taking the threat of death off the table is a pretty wimpy tactic.
        Why show your hand so early?

    • No. It was kind. It’s “That’s OK son. We’re not going to disbar you. Just go ahead and do what you’re supposed to do, and all will be forgiven. This is a tough crowd. You can do it.”

      • It’s a curious tendency I’ve noticed- so many people seem to think that either a) you should be corrected, in which case saying “but it’s OK, don’t worry too much” is coddling or something, or b) if it’s not the end of the world, then you should just let it slide, in which case no standards get maintained. That’s true in any case like this- you’d think it would be more obvious, that it’s OK to say “you’re doing it wrong, and don’t do it that way again, but for now, it will be OK, just do better later.” That’s not directed at any commenter here, just a general trend I’ve noticed.

  5. I might point out that South Texas Law College is located here in Houston. Nor can I say I’m really surprised that one of their faculty would make a statement like that, anymore than I would one from Harvard or Georgetown. In fact, are there any reputable law schools left in the country who wouldn’t tolerate this sort of gutter talk from one of their professors?

  6. Hey, Madalyn Murray O’Hair and Dan Rather are noted on Wikipedia as “Notable Alumni” who attended the law school. So it may be doubtful that Blackman will be denied tenure or reprimanded.

  7. Well, Jeez, Who the hell is Josh Blackman, ASSISTANT PROFESSOR OF LAW AT SOUTH TEXAS COLLEGE OF LAW to call a Supreme Court Justice a “dick?” Calling ANYONE a “dick” on a professional basis is bad enough, but when you’re just an Assistant Professor of Law at the South Texas College of Law (barely accredited, I’m sure and well known, probably for its own complement of “dicks” — you’ve got hell of a lot of nerve. Why isn’t Blackman on the Supreme Court? Maybe because HE’S the “dick.”

    What is happening in our world? Civility is dead. And the worst offenders (ha ha) are the ones who don’t know what they’re talking about, who resent those who achieve, and whose ideologies don’t match their own. Hey, Blackman, do you like “dick-head” better? Seems more descriptive to me…,

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