Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.
MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -
JUSTICE SCALIA: Counsel, you are not reading this, are you?
Oh isn’t that uncomfortable.
A moment later, Justice Breyer kindly intervened:
JUSTICE BREYER: It’s all right.
Lyle reported on the exchange:
(Lechner’s quite apparent nervousness might well have been explained because, after he had spoken only a few sentences, Justice Antonin Scalia brusquely asked: “You’re not reading this?” Lechner didn’t answer, simply standing silent for a lengthy embarrassed moment. Lawyers at that lectern are, it seems, supposed to extemporize.)
Pardon the French, but 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. Scalia can be annoying, and pester lawyers on the merits, but attacking him for reading (what seemed to be a position Scalia agrees with!) is uncalled for. I understand judges at all levels are often mean and discourteous to the litigants, but generally at the Supreme Court both the bar and bench try to comport themselves at a higher level.
Robert Thomas adds at the Inverse Condemnation Blog:
You know, we’ve all been there in some venue, haven’t we? We’re all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes. Heck, we won’t even go down to muni court naked (so to speak). Especially when what’s at stake is the language in an otherwise obscure 1875 federal statute, where it’s important to get the language just so. To the Justices, oral argument is just another day at the office. And maybe that’s also true for the usual suspects downrange at the Court who appear regularly. But for those lawyers from outside the D.C. bubble, a Supreme Court case can be a once-in-a-career experience, and, we imagine, a very nerve-wracking experience, even if you do get a nice feather pen for your troubles. Especially with all of the coverage of every argument — even those not of obvious public interest that may have in years past, gone unnoticed by the larger media — where counsel’s every movement is blogged, twittered, and splashed all over the front pages of the papers for everyone to comment upon. So come on folks, give the guy a break. At least until you have stood in his brogues, and gone toe-to-toe with Their Honours and lived to tell the tale.
These types of comments ensure that only those inside the Supreme Court bar will be qualified to argue at One First Street.
Josh Blackman is the author of “Unprecedented: The Constitutional Challenge To Obamacare,” which can be purchased here.
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