This week we have reported on what we'll call the Garner Tapes videos recorded by legal writing expert Bryan Garner with eight of the nine Supreme Court justices talking about writing and oral advocacy. As promised, this is the first of several blog posts with additional nuggets from the tapes.
A recurring theme from several of the justices is that lawyers should welcome the high volume of questioning they get from the current Court, rather than viewing it as a distraction. Justice Antonin Scalia, probably the Court's most frequent questioner and certainly its most combative recalled the one time he himself argued before the high court as a young Justice Department attorney. He did not name the case but Court files indicate it was Alfred Dunhill of London, Inc. v. Cuba, argued in January 1976. He was representing the Ford the Nixon administration as an amicus curiae to American cigar importers who were in a tussle with Cuba over money tied up by the 1960 Cuban nationalization of its tobacco industry.
In his interview with Garner, Scalia lamented that during the long-ago oral argument, "I had two questions my whole time. It was awful. Face to face, you know, I'm just saying what I've already said [in the brief], I'm like, 'C'mon, guys, give me a hand here!... How can I help you? What are you concerned about?' No, I think good counsel welcomes questions." By the way, Scalia's side won, 5-4.