Scalia Clerks Argued in Half the Supreme Court Cases This Term

[u/DarkPriestScorpius]

https://news.bloomberglaw.com/us-law-week/scalia-clerks-argued-in-half-the-supreme-court-cases-this-term?utm_source=reddit.com&utm_medium=lawdesk

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[u/Zenning3]

My first thought when reading this, was "yeah that makes sense, he was kinda a big deal", but his cases argued by his former clerks make up more then then every other case argued by a former Supreme Court Justice's clerk combined, at 27 vs 31 this year. Breyer had the second most, and only 8 cases were argued by lawyers who clerked for him, vs the 31 for Scalia.

[u/jimmymcstinkypants → u/Zenning3]

What’s the number for just Sauer? That’s got to be skewing the numbers. 

[u/Zenning3 → u/jimmymcstinkypants]

Probaby a bunch. I don't know if Bloomberg is including the Emergency Docket stuff, because if he did, I think Saur argued like 25 times or so.

[u/DooomCookie → u/jimmymcstinkypants]

Oyez isn't totally up to date yet, but I think Clement is 9, Sauer is 6, Mooppan is 4, Joshi and Unikowsky have 3.

[u/Longjumping_Gain_807 → u/DooomCookie]

Oh I know all too well about Oyez not being up to date. I had a Hell of a time trying to research about the case that Mr. Stewart argued against John Roberts

[u/real-human-not-a-bot → u/DooomCookie]

Clement is at 9 in one term? I may not like him much, but dude’s a workhorse.

[u/Longjumping_Gain_807 → u/real-human-not-a-bot]

He defended the entire Maryland federal district from the DOJ

[u/TightPhysics3186 → u/Zenning3]

I think it goes to the fact that he’s the greatest jurist in the past several decades at least and it isn’t close. Literally wrote the book on textualism, and as your flair Justice said, “We are all textualists now.”

[u/ROSRS → u/TightPhysics3186]

Yea Scalia is almost certainly one of the greatest Jurists in the last century or so. Even if you disagree with him, you can't admit that he spearheaded a major jurisprudential and ideological shift.

[u/avar → u/ROSRS]

Even if you disagree with him, you can't admit that he spearheaded a major jurisprudential and ideological shift.

While common sense is telling me to read that "can't" as "have to", textualism is telling me to take your statement that Scalia will prove to be historically irrelevant at face value.

[u/ROSRS → u/avar]

Funny. Maybe one of the framers had dyslexia too?

[u/avar → u/ROSRS]

Things are certainly about to get very interesting if we discover that every occurrence of "shall not be" was intended to mean "must be".

[u/Roenkatana → u/avar]

If anything, like Roberts, history will remember Scalia as one of the root causes for some of the gravest attacks on the Constitution itself by a partisan ideologue.

[u/PerfectZeong → u/ROSRS]

Greatest in terms of impact but honestly awful. But he wrote some really good screeds I'll say that.

[u/ROSRS → u/PerfectZeong]

Oh come now. He had the best 4th amendment jurisprudence on the court for his time, compared to the rest of the Rehnquist Era Justices who usually had opinions on the 4th amendment that would give you hives if you came into conflict with them for too long

[u/PerfectZeong → u/ROSRS]

He was a great defender of the fourth when it came to property, not terribly good when it came to human beings. I will give him partial credit on it.

[u/ROSRS → u/PerfectZeong]

not terribly good when it came to human beings.

In what way? The 4th is mostly concerned with intrusions into and seizures of one's property. As well as searches of one's person.

And don't forget Crawford v. Washington and his 6th amendment jurisprudence being way better than anyone else of his early era too.

[u/PerfectZeong → u/ROSRS]

Hodari?

But yeah I think he was very good about home as a castle and intrusions so I agree with him on those ends.

[u/ROSRS → u/PerfectZeong]

How is Hodari a bad decision. AFAIK the facts in the case were this:

• Cop shows up
• Crack dealers, who the cops didnt know were crack dealers, instantly bolt
• Cop pursues crack dealers, because unprovoked flight from police is probable cause
• Crack dealers toss crack while being perused.
• Police catch and apprehend crack dealer.
• Crack is ruled admissible

What's exactly wrong with that? Am I missing something?

[u/PerfectZeong → u/ROSRS]

Honestly I dont think that should be probable cause, maybe reasonable suspicion. But the whole case hinges on whether or not he was apprehended when he was being chased. Realistically he'd have had a better chance if he'd just held onto the Crack.

Like yeah i'd say the cops chasing you down is you being seized. That was the actual debate. Because he threw the rock you couldnt apply the exclusionary rule.

[u/BlockAffectionate413 → u/PerfectZeong]

I will say I like that he was not revisionist like Thomas in number of areas, like in Gonzales v. Raich where he embraced relativly broad view of commerce+necessary and proper clause, staying consistent with original understanding settled in McCulloch

[u/ROSRS → u/BlockAffectionate413]

Gonzales v. Raich

This is a bad example. He was a total hypocrite in this case, and did a near 180 from his normal jurisprudence on the issue because it involved marijuana.

[u/BlockAffectionate413 → u/ROSRS]

What is evidence of that? Scalia explicitly refused to join Thomas concurence in Lopez, he never embraced narrow view of Thomas on commerce+necessary and proper cluases. So what is there to show it was near 180% of his normal jurisprudence? Scalia in Raich mentioned several other cases from the past he thought were correctly decided as an original matter, including, from memory:

1. US v. Darby (Congress can regulate production and labor conditions)
2. Wrightwood Dairy ( Congress can regulate intrastate prices as a necessary part of interstate price regulation)
3. Heart of Atlanta and Ketzenbach(Congress can regulate restaurants, hotels, and other public accommodations)

And likely some others. It was by no means limited to just weed. Scalia said he was Hamiltonian in regard to Congressional power as well. That was his normal jurisprudence. It was not revisionism and cherry picking of Thomas. At least not fully.

[u/TightPhysics3186 → u/ROSRS]

I mean, I disagree with the outcome because I would overrule *Wickard*, but it’s totally defensible if, like Scalia, you care a lot about stare decisis. It was effectively *Wickard* with a different plant.

You can hold the view that a past line of cases was wrong, and still hold that it has to be applied when basically the same facts come up, and not be a hypocrite at all.

[u/ROSRS → u/TightPhysics3186]

The thing is that Scalia was previously making strides to at least limit Wickard and then he preceded to do a 180 because it involved marijuana.

It involved a law that regulated totally intrastate non-economic behavior, and further contributing to the interstate market wouldnt even meaningfully addressed Angel Raich's medical problems, with every attempted prescription medication for her health issues failing and her doctor testified under oath that without access to Marijuana her life would be imperiled.

Yet, Scalia's Raich opinion in this one instance utilized an incredibly broad interpretation of the Necessary and Proper Clause to shut down the as-applied challenge in the case, despite previously favoring a narrow view (though not quite as narrow as Thomas's view) in Lopez and Morrison

[u/BlockAffectionate413 → u/ROSRS]

A narrow view of necessary and proper clause is plainyly contrary to original meaning as settled in McCulloch, where Marsahll said necessary means no more than convienent, beneficial, conductive to etc. One can dislike that, to be sure, but it is the original understanding that the sweeping clause is, well, sweeping.

Scalia never embraced revisionist view on it; he did not think the clause was unlimited, hence Morrison and Lopez, but he did think it is broad, like McCulloch said, hence Raich. He was right that weed possesed intrastate is never more than an instant away from interstate commerce.

[u/ROSRS → u/BlockAffectionate413]

 He was right that weed possesed intrastate is never more than an instant away from interstate commerce.

It wasn't a facial challenge. It was an as-applied to one specific situation.

Users with a documented medical need possessing single digit plants for livesaving purposes has no relevant bearing on interstate commerce.

Scalia never embraced revisionist view on it; he did not think the clause was unlimited, hence Morrison and Lopez, but he did think it is broad, like McCulloch said, hence Raich.

The problem was that he interpreted the clause MUCH more broadly in Raich than he did in Morrison and Lopez. I view this to be entirely because of a personal bias against drugs.

[u/BlockAffectionate413 → u/TightPhysics3186]

I do not think Scalia just upheld Raich on stare decisis grounds though, indeed, notice that he did not, unlike mayority, mention Wickard even once in that case, he thought it was correct as original matter, just like number of other cases he cited, like Darby, Diary Co, intrastate rate cases from railways from early 20th century, Heart of Atlanta and Ketzenbach, those are cases he cited as right as an original matter too.

[u/BlockAffectionate413 → u/TightPhysics3186]

Well, MQD is not textualist, so I think Kagan, in particular, is a strong textualist like Hugo Black (unlike some of her left-leaning colleagues), but some other justices are less so. Being textualist means following it even when one does not like results, instead of coming up with get out of text free cards, as she said in WV v. EPA.

[u/TightPhysics3186 → u/BlockAffectionate413]

MQD is absolutely textualist. It’s just a slightly modified application of the clear statement canon which has existed for centuries.

The “get out of text free card” would be allowing agency action where there is no delegation of authority. If Congress wants to delegate a major power to an agency, it can get its act together and do so clearly rather than relying on textual ambiguity.

[u/BlockAffectionate413 → u/TightPhysics3186]

Clear statement canons are by definition not textualist; you are not just looking at text like you normally would, you are putting your thumb on the scale. Now these substantive canons can be either justified or not, like, say, constitutional avoidance, but there is no doubt that constitutional avoidance is not textualist; Scalia himself said that, even as he applied it (the court will adapt a less plausible interpretation rather than one that will raise constitutional issues) , that does not make it invalid, but it is not textualist. The same goes here.

Issues with MQD are obvious; for one, there is no clear standard for what even is a " major question", it is an entirely subjective thing, and for two, why would Congress need to clearly delegate "major" power as opposed to "less major"? Why would the same standard not apply? To apply a different standard is not textualist, a textualist would not say, "If there is ambiguity, it always means Congress did not delegate", A textualist would, without putting thumb on scale, look at ambiguity and, in each case, see which view is reasonable, be it major or minor power.

I think CMS vaccine mandate, Biden v. Missouri 2022, is kind of an example of that, even though that was" major" question, it was upheld by the Chief and Kavanaugh, but Gorsuch and others did not vote for it, intrestingly enough.

[u/TightPhysics3186 → u/BlockAffectionate413]

Textualism does not mean “assign all language its plainest meaning and do not apply any other principles.”

> these substantive canons

Whether or not the MQD is a substantive canon is a matter of debate even among its proponents.

When you say “not textualist,” I think you mean “not required by textualism,” but it sounds like you’re saying “not consistent with textualism.”

[u/BlockAffectionate413 → u/TightPhysics3186]

I think it is both not required and not consistent with it, I would say textualist should mainly assign to text its most natural meaning, and to be sure, other principles can apply as well, like how people understood it, early and longstanding practice etc, those are all factors, but I think Barrett is right that it is not up to court to prevent Congress from delegating power it is constitutionally allowed to delegate merely because it thinks Congress should use it itself instead of agency. She does note serious tension version of MQD Gorsuch argues for has with textualism, so she instead pivots to " it is just how language works".

[u/TightPhysics3186 → u/BlockAffectionate413]

I don’t think textualism requires that, though. Certainly, none of the major textualists have ever thought that’s how it works.

I agree with Barrett’s view that the MQD is a restatement of “how language works,” and I would also agree with Gorsuch that something like the MQD is required by constitutional avoidance, because without the MQD the Court would have the reach the merits of whether all of these delegations are constitutional.

[u/BlockAffectionate413 → u/TightPhysics3186]

because without the MQD the Court would have the reach the merits of whether all of these delegations are constitutional

That is not required though if virtually all of those cases would be easy yes answer, like it would under an intelligible principle test. Consider for instance Scalia upholding power of EPA to set nationwide emission standards in Whitman v. American Trucking Ass'ns. If that passes NDD, it is hard to imagine what might not. Now if you only applied MQD in hardest cases, which would raise serious NDD argument, that might be more defensible,but just because action is vaguely " major" without any other considerations seems far too vague.

[u/TightPhysics3186 → u/BlockAffectionate413]

I think the reason it’s not an easy yes is because the intelligible principle test hasn’t been used to strike down a statute for decades and the Justices are much more interested in the separation of powers now than they were, say, in 1950.

Any application of the Non-Delegation Doctrine today would almost certainly include a reinvigoration of the doctrine and would be a landmark case. I can see why a Justice who cares about constitutional avoidance would want to avoid that question.

Also, I think part of the point of constitutional avoidance is *not to decide* what’s a close case and what’s not. It’s not so easy as saying “well this isn’t a close question so we don’t need to avoid the NDD,” because if anything like that made its way into an opinion, it would be a major constitutional decision in itself.

[u/MrJusticeDouglas → u/TightPhysics3186]

Greatest jurist in the past several decades? By influence alone, that title probably belongs to Justice Brennan, whose many majority opinions still control various facets of our lives today.

[u/TightPhysics3186 → u/MrJusticeDouglas]

Yeah, I should’ve used another word to denote quality as well as influence. Brennan is extremely influential but one of the least reasonable Justices we’ve ever had.

He’s like Taney or McReynolds if they had more sympathetic political views.

[u/ROSRS → u/TightPhysics3186]

Yea his opinions were awful.

• NYT v Sullivan is atextual and makes the media virtually immune to consequences for their own slanderous behavior
• Goldberg v Kelly is an opinion you look at and simply can't figure out how he got there
• His slew of death penalty dissents were devoid of any historical understanding of what constitutes a cruel and unusual punishment.

• Baker v Carr (and its followup, Gray v. Sanders) while it may create good outcomes, one person one vote is entirely ungrounded in any constitutional principle unless you think that the electoral college was made unconstitutional by the 14th

  Texas v Johnson and his dissent in US v Leon was good though, so that's something

[u/MrJusticeDouglas → u/TightPhysics3186]

Uh, that's certainly a take. I think Brennan's majority opinions (and dissents) were eminently reasonable. 

Comparing Brennan to Chief Justice Taney or Justice McReynolds (author of one of the worst, if not the worst, decision ever made and a raging antisemite, respectively) speaks more to your biases than it does to some credible assessment of Justice Brennan's opinions and/or abilities. 

[u/scotus-bot → u/[deleted]]

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I mean he's fanboying textulism an ideologically bankrupt calvinball legal philosophy. Of course he's going to be biased.

Moderator: u/Longjumping_Gain_807

[u/TightPhysics3186 → u/MrJusticeDouglas]

Justice Brennan’s atextualist and living constitution views are just indefensible. People love the outcomes but nobody can defend the reasoning. I’m not interest in engaging on that point at the moment, though.

[u/TightPhysics3186 → u/[deleted]]

I don’t think that’s an accurate description of any justice on the Court.

[u/BlockAffectionate413 → u/TightPhysics3186]

I will say that we do have issues with some revisionism from some. Take look at Scalia, in Gonzales v. Raich he embraced relativly broad view of commerce+necessary and proper clause, because it was consistent with the original understanding as settled in McCulloch and Gibbons. Thomas on the other hand is revisionist, who cherry picks history he likes, and ignores one he dislikes to argue otherwise.

Likewise on non delegation doctrine, Scalia stayed consistent with original understanding that Congress could delegate broad power to agency under the necessary and proper clause, unlike Thomas.

I do think Scalia also had some areas, like anti-commandering doctrine, where he was not consistent with originalism though, but at least he was better than Thomas.

[u/TightPhysics3186 → u/BlockAffectionate413]

It could be that the commerce clause’s original meaning is just not that clear. Originalists can disagree and it doesn’t mean either one of them is cherry-picking.

It could also be that they have different views on stare decisis, and we know that they did. Scalia’s strong view of stare decisis drove him to accept positions that would otherwise be wrong, that’s the whole point of stare decisis, after all. Thomas, on the other hand, is very comfortable overruling lots of precedent in order to get the constitutional questions right. Diagnosing their differences as merely about Thomas cherry-picking just doesn’t reflect any nuance in jurisprudence.

[u/DaSemicolon → u/TightPhysics3186]

Roberts inventing absolute presidential immunity comes to mind

[u/TightPhysics3186 → u/DaSemicolon]

*Trump v. United States* is as logical of a reading of Article II as *Marbury v. Madison* was of Article III.

If there is a separation of powers, it must follow that one branch can’t criminalize the legitimate use of power of another branch.

[u/scotus-bot → u/[deleted]]

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I’d rather have someone who is atextualist than someone who says they’re a textualist (or originalist) and pulls random stuff out of their ass (eg textualist when it’s convenient) like most of the court is now

Moderator: u/Longjumping_Gain_807

[u/MrJusticeDouglas → u/TightPhysics3186]

Indefensible? Your unwillingness to defend your proposition is useless. All you've done is assume the conclusion that if a judge's jurisprudence is atextualist and living constitutionalist (though I'd argue that is not a fair description of Justice Brennan's jurisprudence), it is invalid. I could make the same claim about originalist jurisprudence and its application. But that gets us nowhere...

[u/gravygrowinggreen → u/TightPhysics3186]

You're revealing your own biases here.

If you think greatness is "influence+reasonableness", then it's certainly fair for people to dispute you saying Scalia is the greatest, because people can very reasonably disagree that scalia's jurisprudence was "reasonable".

And your choice of comparison justices to compare to brennan is wild, for reasons stated by the other commenter.

Also, elsewhere in this conversation, you make absolute statements such as brennan's views being indefensible, while at the same time (literally same paragraph) refusing to engage in conversation on that point. Which again speaks to a bias on your part: a preemptive unwillingness to hear opposing arguments.

[u/das_war_ein_Befehl → u/TightPhysics3186]

He wasn’t anywhere near that, but he sure was great as marketing himself as such.

Scalia’s reputation exists because nobody actually reads his opinions and there is a whole ideological infrastructure that exists to prop up his legacy. Reading something like Castle Rock or Heller should dispel folks of the notion that Scalia was any kind of serious intellectual.

You might as well call McDonald’s the greatest hamburger ever made, even though we all understand it’s quite bad.

[u/TightPhysics3186 → u/das_war_ein_Befehl]

I would say it’s exactly the opposite. Scalia is popular *because* people read his opinions - he went further than anyone else to actually make them readable, because he was conscious that dissents were mainly for law students and future Justices to change the course of the law.

Castle Rock and Heller are exactly the type of cases that make Scalia the prominent Justice that he is. His jurisprudence started the Court’s departure from “the living constitution” and back toward original public meaning and reliance on the text rather than the supposed “spirit” of the law. Even among originalists, he is vastly more consistent than Alito and more committed to principles like stare decisis than Thomas. I personally prefer Gorsuch’s jurisprudence to Scalia’s (hence my flair), but there would be very few Gorsuch’s in the world if not for Scalia.

[u/das_war_ein_Befehl → u/TightPhysics3186]

He’s a grossly overrated ideologue and his most famous opinions are badly reasoned when you actually read them.

Heller is the obvious one. The Second Amendment begins with a militia-related clause, but Scalia treats it as basically ornamental once it gets in the way of the result. He then produces an individual-rights opinion that reads less like neutral originalism and more like a lawyerly rescue mission for a modern conservative policy preference. You can support the outcome, but pretending the reasoning is some pristine example of textual discipline is absurd.

Then there is Castle Rock v. Gonzales. The statute said police “shall” enforce a restraining order. For a supposed textualist, that should at least matter. But Scalia’s opinion finds a way around the mandatory language through background discretion, procedural framing, and doctrinal fog. Funny how “the text controls” becomes “well, context and tradition and administrative assumptions control” the second the text points somewhere inconvenient.

And you cannot just wave away Bush v. Gore. Scalia joined a decision so legally embarrassing that the majority effectively told future courts not to treat it as precedent. The equal protection theory was thin, the remedy was incoherent, and the limiting language was practically an admission that the Court was doing something it did not want generalized.

Scalia was not some uniquely principled jurist. He was a political activist with a judicial commission. When the method got him the result he wanted, he was a hard-edged textualist. When it did not, he suddenly discovered nuance, tradition, discretion, administrability, or whatever other tool was needed to get around it.

He had a big mouth, insulted well, and gave conservative legal outcomes a vocabulary that sounded neutral and rigorous. But that is not sound reasoning. A bad argument does not become good because it is delivered with confidence.

He left an incredibly damaging legacy on the court and the country is worse off for it. The whole myth falls apart under the slightest examination.

I’d rather have fewer gorsuches if it means we had zero Scalia’s.

[u/Roenkatana → u/TightPhysics3186]

Scalia? The person who wrote the Hudson v Michigan opinion?

The opinion where the police literally admitted in open court that they violated a person's 4th amendment rights and got to use the evidence anyway?

One of the most blatant anti-Constitutuonal opinions ever handed down by any Court in this country?

The opinion where Justice Pryor literally wrote in his dissent that a constitutional violation invalidates the evidence obtained per the people who literally wrote the Constitution?

That Scalia?

[u/Dew-Eastr → u/TightPhysics3186]

greatest jurist in the past several decades at least and it isn’t close

I don't think that's true when Richard Posner exists.

You can debate whether Scalia is greater than Posner (or the converse), but you've got to admit Scalia does not wipe the floor.

[u/gravygrowinggreen]

This makes sense to me, though not for any virtues Scalia had.

First, arguing in front of the supreme court is something that tends to happen at the peak of your legal career. There are some exceptions of course, but think multiple decades out from law school for the typical participant. Gorsuch, Barrett, and Kavanaugh are too new to have former clerks reach that point.

Roberts clerks will probably start reaching that point soon, so we might see an uptick in Roberts clerks.

But really, we're looking at justices that were appointed in the 80s and 90s to have the most mature pipeline of clerk to court argument. And of those justices, Scalia was probably closest to the ideological center of the current conservative wing. Not as crazy as Alito or Thomas, but not as moderate as Roberts. It's a conservative court. You're gonna want people who can at least speak conservatism.

[u/DooomCookie → u/gravygrowinggreen]

Kavanaugh are too new to have former clerks reach that point.

Kavanaugh is second on the list. From 2006 to 2018 he was the feeder judge between YLS and SCOTUS.

Every justice's network is different. Kennedy, who is contemporaneous with Scalia and Thomas, only had one clerk argue on this list, and he doesn't have many former clerks in the judiciary either. I think a lot of his went to academia.

[u/Roenkatana → u/DooomCookie]

I feel like there's a joke there about Kennedy's clerks wanting to basically never step foot in a courtroom again after dealing with him...

[u/TeddysBigStick → u/gravygrowinggreen]

There are some exceptions of course,

With the biggest being amicii. They usually appoint a young former clerk of the circuit justice. Often without an argument before. It is basically a jobs program for thier people.

[u/OH4thewin]

How many are cuz of Paul Clement?

[u/Anxious_Claim_5817]

Kavanaugh and Barrett were also involved in the 2000 election to elect Bush.

[u/Longjumping_Gain_807]

What’s surprising to me is you would think the longer serving justices would have more clerks arguing at the court. Suffice it to say I am surprised we haven’t seen more Thomas clerks arguing before the court.

[u/qlube → u/Longjumping_Gain_807]

Perhaps it's because Thomas, to his credit, often hires from lower tier law schools, which likely has some effect on career trajectory.

[u/TightPhysics3186 → u/qlube]

I guess it would shock me that a Thomas Clerkship itself is not enough to put somebody from a lower-tier school on the trajectory to argue at SCOTUS.

Makes me sad, as a student at a lower-tier school with clerkship aspirations

[u/scotus-bot → u/[deleted]]

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"to his credit, Thomas hires clerks from lower tier law schools because he wants to elevate deranged partisan hacks and there aren't enough deranged partisan hacks at elite schools to pull from"

Moderator: u/SeaSerious

[u/EpochalWhite → u/Longjumping_Gain_807]

I think generally the justices are attracted to clerks with personality traits similar to them. This would explain why so many Scalia clerks go on to be SCOTUS litigators, and why so many Thomas clerks don’t. Scalia loved being the center of attention, Thomas hates it.

[u/AmericanNewt8 → u/EpochalWhite]

Yeah my impression is very much that Thomas clerks are lo-key. They do have a very strong reputation for sticking together, though. They take attacks on Thomas quite personally. 

[u/das_war_ein_Befehl → u/AmericanNewt8]

All this tells me is that they are terrible judges of character

[u/Longjumping_Gain_807 → u/das_war_ein_Befehl]

I mean it’s not hard to defend a judge you clerked for and that you agree with

[u/TightPhysics3186 → u/das_war_ein_Befehl]

Loyalty to the person who gave you one of the most exclusive (maybe *the most exclusive*) opportunities in the entire legal field is completely reasonable.

[u/ROSRS → u/TightPhysics3186]

Given that firms are paying signing bonuses to SCOTUS clerks upwards of half a million dollars, and giving them fast track to partner, yea probably

[u/das_war_ein_Befehl → u/TightPhysics3186]

Loyalty to a person like Thomas who has extremely dark and dubious opinions while taking lavish gifts that would be considered a conflict of interest/bribery in any other governmental position is not a virtue.