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A First-Hand Appreciation of Justice Scalia

CNN broadcast an appreciation of Justice Scalia by the first clerk he selected to go with him to the Supreme Court, my wife, the Hon. Lee Liberman Otis.  The broadcast of the telephone interview is here.

As Lee notes, Scalia did not mince words, with colleagues on the Court or with clerks.  He was a New Yorker through and through.  But he was a warm and gracious man, and unfailingly friendly to me, although I had never worked at the Court or presented an argument there.  His death is a loss to the country and to law itself.

I have started to see debates about whether Scalia was "pro-defendant" or "anti-defendant."  Such debates miss the point of his jurisprudence.  It was not about the litigant; it was, as Lee says, about the law, and getting it right under the law.  That was the lodestar for him.  Indeed, I don't think it's an exaggeration to say it was the only thing that, as a jurist, he cared about.
I will share one anecdote.  It's a somewhat long story, but Justice Scalia is there at the end.

As some here know, I left the Department of Justice in early 2000 because of the Department's refusal to defend in the Supreme Court its victory in the Fourth Circuit in Dickerson v. United States.  That case, which arose from a bank robbery in Alexandria, Virginia, involved the legal underpinnings and constitutional authority of the Miranda decision.  It was, to say the least, a big deal.

The Fourth Circuit had held that Miranda was not a direct requirement of the Fifth Amendment and thus could be modified by statute.  In 1968, Congress in fact modified Miranda in 18 USC 3501, which did not require automatic exclusion of the defendant's statement in the absence of Miranda warnings. 

The Fourth Circuit found the statute valid and overturned the district court's suppression order.  Mr. Dickerson sought certiorari. The question then was not whether Dickerson's statement was voluntary; all sides acknowledged that it was. The question was what position the Department would argue in the Supreme Court. As chief of appeals for the USAO that won the case below, I had a direct say in that.  I urged the Department to defend the victory my office had won.  My argument was not directly that the Fourth Circuit's opinion was correct (although I made the case for that, too).  My argument was that, under long-honored traditions within the Department, the government should defend any judgment in its favor if there were any reasonable grounds to do so.  This rule is required to promote less politically-oriented stances over time, as administrations change. 

I believe I had a strong case.  The Circuit panel had voted in my favor, and the appellate court had denied re-hearing en banc by a lopsided vote of 8-3.  The idea that there was no reasonable argument in behalf of Section 3501 was, frankly, preposterous.  I also knew, however, that this would be a tough ladder to climb, because Miranda is an icon of the Warren Court era, and is considered untouchable by liberals.

I made my case directly to then-Solicitor General Seth Waxman, copying the relevant committee chairmen and ranking members in the House and Senate. The Department decided otherwise, and lined up in the Supreme Court taking Dickerson's side (I believe there was White House input in that decision, although I was never directly told).

I should add here that my immediate superior, the Clinton-appointed US Attorney for the Eastern District of Virginia, Helen F. Fahey, backed me up every step of the way.  Her courage in bucking the political power players at DOJ, including Attorney General Janet Reno, was something to behold.  It is one of the my most valued memories from my career in the USAO.

When I was informed that the Department would forfeit the government's win in the Fourth Circuit, and argue for constitutionalizing the status of Miranda beyond what Miranda's own language and subsequent cases would support (not to mention the text of Fifth Amendment, which never mentions a warning requirement), I had a decision to make.

I had had a good career.  I liked the job as chief of appeals and it liked me.  I believe I had the respect of the judges on the Fourth Circuit.  I had a seat at an important table inside DOJ.  But I had to consider whether continuing at DOJ when its stance in the Supreme Court was more political than law-driven was something my conscience would allow.

I resigned the next day.  This was early in 2000 (although it might have been in late 1999, I can't quite remember).

When DOJ filed its brief supporting the constitutionalized view of Miranda, and taking Dickerson's side, SCOTUS appointed my friend, Prof. Paul Cassell, to present the other side of the story.  I did not believe I could properly write an amicus brief since I had inside information on the case I had gained while employed by the government.  I thus said nothing in court.  But it was no secret around town that I had been in the middle of the Dickerson controversy.

I had a ticketed seat at the argument in the Supreme Court in April 2000.  One of the other beautiful memories I have from those times is that there were many career people from DOJ waiting in non-ticketed line to get into the (jam-packed) argument. A number walked over to me and silently but firmly shook my hand.

Justice Salia was active at the argument.  It was obvious he had the same view of Miranda that the Fourth Circuit and I did. The Justice most hostile to that view was David Souter, who asked Paul numerous questions, some openly hostile.  Justices Kennedy and O'Connor didn't say that much.  At the end of the argument, Paul and I talked.  We thought we had a decent shot of winning.

The next month, May, I attended the annual Scalia clerks reunion dinner, as I had for years with my wife.  Justice Scalia sauntered over to the table to say hello and chit-chat.

But I noticed one thing.  The Justice would not look me in the eye, something very unusual for him.  When he walked back to his table, I leaned over to my wife and whispered, "We're losing Dickerson."

The next month, in one of its end-of-Term major opinions, the Court ruled in Dickerson's (and DOJ's) favor by 7-2.  The dissent was written in acid but unanswerable terms by Antonin Scalia.

The Constitution never had a better friend.  As a lawyer, I never had a better model.

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