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When I Argued Before Justice Scalia in the United States Supreme Court

by | Feb 14, 2016 | Family Law

Justice Scalia’s favorite phrase during oral argument seemed to be “That’s lovely, but…,” when bantering with those of us who have argued before him. It was a quick way to knock you down a couple dozen pegs and make mince meat of your assertion without ever posing a fact or logical argument in opposition. 

When the Supreme Court advised that it was taking our case up for consideration, though, I had a firm feeling that this could be a Kumbaya moment for the Court, when all nine justices, quite infamous for 5-4 decisions, could come together in unison for the protection of children who had been removed from our country. No, “that’s lovely, but…” moments here.

All of our work in preparing for oral argument kept that united goal clearly in focus.

When it came to the great day of oral argument itself, though, it seemed anything but Kumbaya. We were the only case on the calendar that day and the last case in the Court’s fall term. Everyone in the packed gallery was there just to hear our argument. While I had favorable questions from the Justice most versed on the Hague Convention, Justice Sotomayor, and favorable questions from Justices Kagan, Roberts and Breyer, it seemed that the two justices, otherwise polar opposites, posed the greatest problems for me, Justice Ginsberg and Justice Scalia.

I agree with Justice Ginsberg on most every decision she ever wrote. I disagreed with Justice Scalia on most every decision he ever wrote. But there they were, each doing their best to pick my argument apart.

I must have spent 10 minutes with Justice Scalia’s questioning alone. He wanted to know if an argument which was minor to me was dependent upon winning the larger argument. I did my best to assure him that the minor point was sufficiently minor that I was not attached to hanging on to it, should our larger, central argument fail. He was quite unhappy with my non-answer and pursued his inquiry. Eventually I realized I was never going to be able to get to the other Justices’ questions until I gave Justice Scalia an unequivocal response. No, Mr. Justice, I don’t think my minor argument survives if I do not prevail on the larger one. With that, he was satisfied and we moved along.

Fortunately for me, most of Justice Scalia’s scorn was saved for the opposite side who received the “that’s lovely but…,” treatment. When used against the other side, I must admit that it sounded rather sweet.

And when the opinion came out, it was indeed a Kumbaya moment for the Supreme Court. They decided for me, 9-0. And most wonderfully, Justice Ginsberg and Justice Scalia concurred in a special opinion unequivocally directed to our appellate court.

So, my personal experience of arguing before Justice Scalia was overall quite positive. I can’t say I liked his other opinions at all. But I certainly agreed with this one.

9-0? I guess I’ll take that any day.

And so, for making that at all possible, thank you, Justice Scalia.

Michael Manely