Font Size: 
Inside the High Court: Statutory Text and Scalia's Teeth
Law.com
November 14, 2008
At the Supreme Court on Wednesday, Justice Antonin Scalia, as he has during several other arguments this term, expressed his frustration that some key statutory language wasn't easily located in materials the parties had submitted to the Court. But this time, the justice's impatience turned into contrition, and he ended up offering a rather colorful apology to one of the arguing attorneys.
The case before the Court, Bell v. Kelly, involved review of a habeas petitioner's ineffective assistance of counsel claim under the Antiterrorism and Effective Death Penalty Act. When Scalia questioned petitioner's counsel Richard P. Bress about the relevant section of the statute, 28 U.S.C. Section 2254(d), the text wasn't at the justice's fingertips.
"Mr. Bress, this case involves Section 2254(d), right? Does that appear somewhere in the briefs? It would be nice to have it in front of me," Scalia said.
"Yes, Your Honor," Bress replied.
"I mean, it's a central thing the case is about. I cannot find it in any of the briefs," Scalia said. "Don't you think it's important enough to be in your brief?"
Such a scolding from Scalia normally sends counsel scrambling to point out the page number on which the relevant language can be found. But, after a moment of somewhat awkward silence, Bress simply resumed his argument, addressing a question Chief Justice John Roberts Jr. had posed earlier.
But Scalia didn't forget the matter and, by the end of the argument, he apparently determined he had made a mistake. After Bress concluded his rebuttal, but before the chief justice declared the case submitted to the Court, Scalia jumped in.
"Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief. You indeed did," he said.
"Well, thank you, Your Honor," Bress responded.
"I'm grateful for your not throwing it in my teeth," said the justice, ending the hour -- and the Court's final argument day this month -- on a light note.
Laurel Newby is a senior editor with Law.com.
