My dad gave me the late Justice Antonin Scalia’s book, “Making Your Case: The Art of Persuading Judges,” as a law school graduation gift. Admittedly, I did not read it cover-to-cover right then as I’m sure I should have. But I dusted it off this week and, boy, is it good.
Some of the best chapter titles are “Occupy the most defensible terrain”; “Yield indefensible terrain- ostentatiously”; “Take pains to select your best arguments. Concentrate your fire”; and “Don’t chew your fingernails.” Only a jurist with extraordinary discipline and focus could be so powerful and descriptive in such direct phrasing. (Clearly I have some work to do). Scalia’s book provides advice for every stage of a case, from figuring out what kind of relief you are actually seeking to what to consider if, at the end of the day, you have not obtained that relief.
If you pick up “Making Your Case,” you are sure to find that there is a ubiquitous theme in the book, which calls for advocates to be contemplative and deliberate about what they are trying to accomplish in their presentations to the court.
“Many advocates fail to appreciate that the outcome of a case rests on what the court understands to be the issue the case presents,” Scalia writes.
That is a good reminder that if the advocate is not crystal clear on the relief being sought and why the law applied to his/her facts justifies that relief, then the advocacy is not going to get you very far.
There’s another book I would recommend also written by Scalia, “A Matter of Interpretation.” The book delves into the commonly discussed aspect of Justice Scalia’s role on the bench as a constitutional originalist.
“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring,” Scalia once said. “It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
In the book Scalia calls his theory “textualism” and describes it this way: “[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”
There is a lot to unpack in that statement and no shortage of critique and discussion of the theory/approach in all the major newspapers following Scalia’s death last Saturday. I would recommend this book to those who have the curiosity to dig deeper into his constitutional approach.
Whether you agree with the decisions Scalia rendered from the bench, or his general approach to judicial decision-making, you will likely agree that his writing is masterful and we can all benefit from that.