Right Side of the Rainbow

“TWO OUTSIZED PERSONALITIES CLASHED AT THE SUPREME COURT on Wednesday and one of them, Justice Antonin Scalia, was briefly silenced by a barbed comment that left other justices laughing:”

Longtime Harvard law professor Arthur Miller, rarely at a loss for words himself, was arguing on behalf of shareholders who want to sue companies for fraud.

[…]

Scalia clearly was on the side of the companies, chiming in from time to time to make Miller’s difficult task a bit harder.

U.S. Supreme Court Justice Antonin Scalia

After one remark, Miller let loose: “Is that because you never met a plaintiff you really liked?”

Lawyers who argue at the court are advised to devote their precious time to serious matters because jokes often fall flat.

But this one didn’t. There was laughter and an “ooh” from spectators. Justices Stephen Breyer and Clarence Thomas laughed for several seconds, even after arguments resumed.

Miller, perhaps sensing he crossed a line, quickly added, “I took a liberty there with the justice.”

Harvard Law Professor Arthur Miller

Scalia soon had his say. When Miller urged Chief Justice John Roberts not to take him literally, Scalia cut in.

“Let me write that down. We should not take you literally,” Scalia said.

The last word on the topic went to the genial chief justice, a generation younger than his fellow Harvard law alumnus.

“OK, you two are even now,” Roberts said.

I lost a lot of respect for Justice Scalia when he joined the majority in Raich. The Raich Court held that Congress has authority under the Commerce Clause to prohibit the intrastate cultivation and use of medical marijuana.

No principled textualist, which Scalia claims to be, can believe that. (See the dissent by Justice Thomas.) Scalia allowed his personal disapproval of drugs to overcome his judicial philosophy.

Still, the man is an intellectual tour de force who belongs on the Supreme Court. But this little snit with Professor Miller is an example of why no president was ever going to appoint Scalia chief justice. During oral argument before the Court, Scalia too often mistakes himself for counsel to one of the parties.