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While Supreme Court Justice Clarence Thomas has been out publicizing his bestselling memoir, fellow conservative Antonin Scalia has been quietly writing a book of his own. But Scalia’s probably won’t be a chart-topper — except among lawyers. Without fanfare or publicity, Scalia and Bryan Garner, the legal writing guru, have joined to co-author a book on the art of persuading judges, both orally and in written briefs. Even though the irrepressible Scalia sometimes irritates rather than persuades the eight judges he happens to work with, the book seems destined to be a must-read for lawyers whose work brings them into courts. As Scalia is often viewed as the Court’s best and most entertaining writer, his participation in the project is sure to invite comparison with a guidebook on ballet by Baryshnikov or on golf by Tiger Woods. “Justice Scalia is a very serious student of advocacy,” says Garner, whose Dallas-based LawProse Inc. runs extensive CLE training for lawyers on writing. “The idea is that we can make an important contribution to legal literature .�.�. and discuss basic principles of argumentation, rhetoric, and judicial persuasion.” Garner says they have “spent four of the last 14 days side by side in [Scalia's] office,” writing and rewriting chapters in the book, a process they began last summer. It’s been an interesting experience, says Garner, who is also editor of Black’s Law Dictionary. “We’re both very picky about style,” Garner says. When they are stuck on some wording problem, Garner says, “He’ll stare at it in his office, and say, �I’ve got it!’ He’ll go over to his word processor.” But they still disagree at times, and surprising as it may sound, Scalia “defers on all kinds of points,” Garner laughs. They have divided the writing equally, Garner says, adding that with all the changes and rewriting, “we can’t tell anymore which of us wrote which sentence.” Scalia’s voice will be present in the book nonetheless, Garner says. Asked if Scalia, in advising lawyers how to persuade judges, warns against citing legislative history — one of his pet peeves — Garner replies, “There is a section on legislative history, but it will surprise you.” Garner did not spoil the surprise. Garner says he proposed the idea of the book in a letter to Scalia a year ago, soon after interviewing the justice for one of his teaching videos. During the interview, Garner realized how similar their views on writing were. “He believes in efficiency of communication,” Garner says. “He doesn’t want a lot of words to express an idea.” Writing the “question presented” section of an appellate brief clearly and succinctly, for example, is key to Scalia. “All else flows from that,” Garner says. “He is impatient to get the goods.” In writing the book, Garner and Scalia have also delved into the classic authorities on rhetoric, persuasion, and oratory, such as Cicero, Aristotle, and Quintilian. “It sounds heavy, but it’s not,” says Garner, who describes Quintilian, a Roman rhetorician who wrote volumes on oratory nearly 2,000 years ago, as “Justice Scalia’s new hero.” Scalia suggested the book’s first working title, May It Please the Court, Garner says, but then nixed it because it has been used for several other works (including Peter Irons’ compilation of taped oral arguments, which upset the Court when first published in 1993.) Now, also at Scalia’s suggestion, the projected title is Making Your Case: The Art of Persuading Judges. Garner says the publisher will be West. Asked about the project through Court spokeswoman Kathy Arberg, Scalia gave this statement to Legal Times: “The object of the book is to make available, in a compact and (we hope) readable format, what we think to be the best advice on how to argue a case. It covers both brief-writing and oral argument. And it includes both advice from modern sources and advice from ancient sources adapted to modern American circumstances. We hope it will be helpful to the bar; if so, it will benefit the bench as well.”
ROBERTS’ HEALTH REPORT Nearly four months after he suffered a seizure near his summer home in Maine, Chief Justice John Roberts Jr. is still declining to answer questions from the press and the public about the status of his health, his diagnosis, or the treatment or medications he might have been prescribed. At the time the episode occurred in late July, some medical experts said the seizure — paired with one he had in 1993 — meant he had epilepsy, with possible consequences for his safety while driving and the prospect of taking anti-seizure medications that could affect him at work. Friends say that off the bench, the 52-year-old Roberts is in good spirits and seeming good health, and he does not talk about the episode. On the bench and around the Court, no impairment or change in his behavior has been noted. But experts on the health of justices are critical of Roberts for refusing to provide any update on his health. They say he is mimicking the stance taken by his predecessor and mentor, the late Chief Justice William Rehnquist, who was steadfast in giving out as little health information as possible throughout his tenure, even during his bout with thyroid cancer preceding his death in 2005. “He is behaving in completely Rehnquistian fashion, saying absolutely nothing and presuming that �the public be damned’ — that justices’ medical conditions do not involve the public interest and are entirely private,” says David Garrow, a University of Cambridge professor who has written extensively on issues raised when justices are ill or decrepit. Garrow also takes the news media to task for not insisting on updates. “This has fallen completely off the public, journalistic radar screen.” University of Missouri political scientist David Atkinson also sees regrettable parallels with Rehnquist’s refusal to talk about his health, not just in 2005 but in the early 1980s, when he was impaired by dependence on back pain medication. “Rehnquist has been a very poor precedent,” says Atkinson, who was the author of a 1999 book on why justices leave the Court. “We really have no idea how serious or episodic” Roberts’ condition might be, Atkinson says. “The public is entitled to know what medications he is taking. It affects everyone. Because of the decisions they are making, the health of justices is not of small consequence.” Roberts declined to comment for this article, either on his health or on why he refuses to update the public.
GIULIANI’S DAY IN COURT Whatever voters think of Republican presidential candidate and former New York City Mayor Rudolph Giuliani now, to the late Supreme Court Justice Harry Blackmun he was a 5 out of 10. Blackmun made his private assessment of Giuliani in 1983 when the then-associate attorney general argued before the Supreme Court in Bell v. United States, a minor case interpreting the bank larceny law that has languished in obscurity ever since. Blackmun’s notes on the argument, along with all his other papers, are on file at the Library of Congress. But Giuliani shouldn’t feel too bad about his grade; his adversary, Florida lawyer Roy Allman, only got a 4 from Blackmun. And a political scientist who has studied the notes Blackmun took during oral arguments over his 24 years on the Court says Blackmun never gave a 9 or 10 ranking. “This is an above-average grade,” says University of Minnesota professor Timothy Johnson of Giuliani’s 5. And then there’s the bottom line: Giuliani won the case 8-1, with only Justice John Paul Stevens dissenting. Victory was to be expected. It’s a tradition that attorneys general and their deputies and associates are offered the chance to argue before the high court at least once during their tenure. But an integral part of that tradition, as former Solicitor General Theodore Olson puts it, is that “we try to make the case they argue a case that is winnable.” The late Rex Lee was SG at the time Giuliani argued, but Olson was at the Office of Legal Counsel, and Olson now says, “I may have been there” when Giuliani appeared before the Court. Now a partner at Gibson, Dunn & Crutcher, Olson is also a top adviser to Giuliani. Olson says the Supreme Court argument does not often come up in their conversation. Elliott Schulder, of counsel at Covington & Burling, was an assistant to the SG at the time and recalls helping Giuliani prep for the argument. “To me, he came across as a real lawyer, not a politician,” Schulder recalls. “It was a relatively easy case, but he prepared very conscientiously. My impression was that he was a lawyer who understood legal arguments.” The case involved Nelson Bell, a Florida man who opened a bank account at Dade Federal Savings & Loan, then altered the account number on someone else’s $10,000 check so he could deposit it in his new account. When the check cleared, he withdrew the $10,000. He was convicted under the federal bank larceny law, which is aimed at anyone who “takes and carries away” money belonging to a bank. Bell asserted that the law did not cover the “false pretenses” crime he committed. So Giuliani’s task was to convince the Court that the law was broad enough to cover Bell’s crime and “all forms of theft,” as he told the justices on April 25, 1983. From Blackmun’s notes, it appears that Giuliani ran into skeptical questioning from “V�M,” his shorthand for Justices John Paul Stevens and Thurgood Marshall. (Blackmun used “V” for Stevens because of the “v” in his name, which distinguished Stevens from the other justice whose last name began with S-t-e, namely Potter Stewart — even though Stewart had retired by then.) They pressed Giuliani to state what the federal interest was in covering a crime that could be taken care of under state law. The bank involved in the case was federally insured, he replied, and besides, Congress in 1937 had intentionally expanded the law to cover a broader category of crimes. Blackmun often made peculiar notes to himself about a lawyer’s physical appearance. He noted that Giuliani’s opponent was “nice looking” and blond, with his hair parted down the middle. For Giuliani, his only notation was “38.” Minnesota’s Johnson said Blackmun often liked to guess the age of lawyers appearing before him, and in this case he got it right. Giuliani turned 39 the following month. Footnote: Richard Nixon also argued before the Court before becoming a presidential candidate, representing the losing side in the First Amendment case Time Inc. v. Hill in 1966.
SUPREME COURT FOR PRESCHOOLERS Playing with her 3- and 4-year-old daughters one day, Jenny Davis found herself surrounded with Disney Princess, Dora the Explorer, and Strawberry Shortcake coloring books, and she got frustrated. “There’s not a lot to say to your kid about some of these coloring books,” she said. So Davis, assistant managing editor of the ABA Journal, set out to fix the problem. She created the U.S. Supreme Court Coloring and Activity Book, now on sale at the Supreme Court gift shop and online in several locations. It’s $5.95, has big faces and wide lines, with the occasional maze and puzzle, and is published by her magazine. There’s even a page where you can “draw yourself as a justice” — maybe that’s the fantasy page for Mom or Dad. Davis, who says she is not an artist (though she is the daughter of an art teacher) did all the drawings herself, including the current justices and a few historical ones, such as Oliver Wendell Holmes Jr. and Thurgood Marshall. It’s not heavy; you won’t have to explain the dormant commerce clause to your child for him to enjoy it. But there are teachable moments if you want them. Davis says the book seems to have struck a chord, selling more than 3,000 copies so far. It’s been a good law firm gift for clients’ kids, and she was surprised to hear that a California court library bought a bunch. Davis explains, “A lot of pro se litigants come in to the library with their kids, and this gives them something to do.”
Tony Mauro can be contacted at [email protected].

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