With nearly a half hour left to go before Supreme Court Justice Samuel Alito takes a comfortable seat at the front of Roger Williams Law School’s Appellate Courtroom, the room is already more than half filled with suited men and professional-dressed women awaiting his arrival. Given the preponderance of lawyers in the room, the occasional bow-tie and sleeveless cardigan sweater is visible, as well.
The event is billed as a “fireside chat,” but I don’t see any area in which it would be safe to stoke a flame.
Room is pretty well full. Attorney General Peter Kilmartin is here.
Introductory comments from Law School Dean David Logan. Dean Ronald Cass is the other side of the “chat.”
Cass: Alito is a very important person in U.S jurisprudence and an honorable and good man. Some statistics:
110th Justice to the Supreme Court
11th Catholic on the court.
6th born in NJ
4th “to claim NJ as a home state”
2nd Italian American
2nd Italian American born in Trenton
Alito: “All of my colleagues have been going on Charlie Rose or the Daily Show, but this is about as close as I’ll get.”
Cass: “This is a far cry from the Daily Show… well, we’ll see.”
Alito: Supreme Court is like winning the lottery in a career, but once you’re in office, you realize the responsibility.
Chose his specification in the law field because he thought he’d be better with judges than juries. Liked being U.S. attorney. Thrilled to become a judge.
On to questions: Two main criteria for choosing a case for the Supreme Court:
1. Conflicts in decisions of lower courts. The federal law should mean the same thing in all states, so this is the “main criterion.” “We don’t always snap up a case as soon as a conflict emerges.” It’s more like “percolation,” for multiple lower court opinions. Also looking for cases that are “good vehicles,” where the legal issue in the law is relatively clear and not bogged in complications.
2. A case that is too important to defer review, whether because it’s a Constitutional challenge or just too big an issue. (Doesn’t give any examples, but PPACA comes to mind.)
Alito is discussing the circ pool, which is sort of like a newspaper’s slush pile (my analogy, not his)… all of the memos about cases that people want the court to review. His office is no longer in the pool, but he has his clerks review them all as a follow up safety.
Back before linotype machines, there weren’t really any briefs, so there was a great deal of oral argument, without limit, early on. “Justice Marshal said the highest ability of a judge was to sit through hours of argument and look at every lawyer, but without hearing a single word said.”
Nowadays, the justices have spent hours reviewing briefs and the law before the case officially opens. Amicas briefs have ballooned, up to five to 10 per side.
“In the Affordable Care case, I needed several briefcases to carry all of the briefs that were submitted.”
“It takes real skill for a lawyer” to add value at oral argument, because the judges have typically got a thorough understanding, although minds may still be open and questions on the table.
“I think most of the public thinks we’re not working… most of our work is not done sitting on the bench.”
Occasionally, Alito says, the process of writing an argument on paper will cause one to see “little gaps or little weaknesses,” sometimes big gaps and weaknesses, and minds can even change. He’s never had that experience on the SCOTUS, but when he was an appellate judge. [Personal note: I’ve often said that clear writing is clear thinking, and vice versa.]
Cass: Sometimes media divides up judges by the party that appointed them. Notes the attention being given to Citizen’s United. As a Constitutional professor, that was one of the easier cases to decide on First Amendment grounds. How can a justice correct misperceptions in the media without seeming to be influenced by the partisan narrative?
Alito: “We speak through our opinions.”
Alito: Citizen’s United involved a very technically complicated area of law, and it’s very easy for people outside of the legal sphere to get it wrong.
He says Canada has a process of “lock up or lock down” in which the court locks media folks in a room with no recording devices until somebody manages to explain the forthcoming decision to them.
“At first, I thought that was a wonderful idea, until I found out that they then unlock the door and let them out.”
Alito tells an anecdote of a day he was on his treadmill watching TV when a commentator said that he always ruled in favor of business because he once worked for the Chamber of Commerce. “I nearly fell off the treadmill, because I had totally forgotten this aspect of my career.” He ran to the computer to look it up on Wikipedia and only became more confused.
Cass: What’s the most entertaining moment/aspect of your Supreme Court career?
Alito: “I’ve enjoyed the cases more when they come out my way than when they don’t.” But he enjoys it all. “The most enjoyable moment occurred during my welcoming dinner, and the next-most-junior justice is responsible for organizing it.” Steve Breyer handled Alitos and surprised him with a visit from the Philly Phanatic mascot.
Time for Q&A
Question: What do you think of the role of international law and even the decisions made around the world? Especially cases that deal with new technology.
Alito: “It depends on the issue.” There are many areas in which it’s clear that other countries’ laws apply, as when a contract adheres to other law. Or treaties. “So how other courts have interpreted it is relevant.”
Some provisions of Constitution clearly rely upon notions of customary international law. Treaties. War making power; cites Union’s blockade of the South.
“There are areas in which it is not helpful” to take a roll-call count of rulings in other nations. Notes death penalty.
First problem: “Which countries do you count?” He cites the Olympics’ opening ceremonies; there are a lot of countries. Does China count the same as Lichtenstein.
Another problem: Our law is different in certain areas from other countries, especially for example, freedom of speech.
“I find it very interesting to read what foreign courts do,” but it isn’t very useful.
Cass: What courses would you take if you went back to lawschool?
Alito: “I never took a federal courts case,” surprising as that may be. He also would have taken a bankruptcy course; he’s not sure his law school even offered one.
Cass: What advise would you give to students graduating now, into this bad environment for law professionals?
Alito: Take advantage of your time in school to develop unique skills and contacts with potential employers.
“Really try to sell a whole range of law offices on what you can do, and persuade them to take a chance on you.” Then work hard once you’re in. [Not very career-specific, there.]
Q from the dean: What were the qualities of law professors that had the most sticking power for you?
Alito:Still remembers Guido Calabresi. He would take old English cases and have his classes students “plow through” them. Also Jeff Hazard’s civ pro course. He was almost in the “old, crusty” law professor “mold.”
Q: “It’s been a difficult couple of days for the United States.” Question is about technology and First Amendment… if this is akin to shouting fire in a crowded theater.
Alito: “It would not be wise for me to comment directly” on this video and the “violent reaction.” But he comes back to the difference between our law and other countries’ laws on freedom of speech.
Justice Ginsberg has said that she wouldn’t recommend the Old U.S. Constitution, but one of the newer constitutions, like South Africa. Doesn’t want to comment on that directly, either.
But, he says, our Constitution is much more categorical than others. Other Constitutions often offer a qualifier… a second paragraph that recognizes that “it’s a qualified right,” with limits acknowledging, for example, “the good of the democracy.” We don’t have that.
Cites the SPEECH Act, saying that foreign defamation courts can’t be carried to the U.S. unless the other country’s courts followed U.S. law in deciding it.
“We have thought that it’s dangerous to go down that road,” of restricting speech. Cites the Stolen Valor Act. He took the position that false speech does not merit Constitutional protection, although he thinks it’s a very careful line to draw, but court went another way.
“There are those who think that our approach is not the best.” At an event with judges from other countries, he was on a First Amendment panel, and he thinks the other judges thought he sort of took their approach. He’s been the lone dissenter on several First Amendment rulings. He didn’t think the Constitution protected videos of people crushing small animals. Didn’t think the Constitution protected Phelps and intentionally hurtful speech at funerals. Didn’t think Stolen Valor Act was unconstitutional.
He disagrees, though, and stresses that U.S. protections of free speech are much stronger.