Don’t think for a minute that Nino, my highly valued classmate and friend, gave me the slightest quarter in cases I argued before him. My first appearance before the recently appointed Circuit Judge Scalia was an appeal in 1984 from the criminal conviction of an Idaho congressman who had been found guilty of omitting from his financial disclosure forms substantial loans that he had received.
The “legislative history” of the law Congress passed in 1978 requiring submission of such forms indicated strongly that Congress did not want to subject senators or congressmen to felony punishment for filing a false form. But the text of the law contained no language exempting such financial forms from the general federal false-statements law, punishable as a felony. When I tried during oral argument to make this point, Scalia cut me up mercilessly, expressing the very skeptical view he would later take regarding a law’s “legislative history.”
The Idaho congressman who was my client was a Mormon. His good friend was Senator Orrin Hatch, also a Mormon (and an admirable supporter of Jewish religious rights who had backed the right I litigated in the Supreme Court to wear a yarmulke in the military). Hatch submitted a friend-of-the-court brief supporting my client’s position. He was interested enough in the case to attend the oral argument. He witnessed my classmate Judge Scalia slicing my argument to ribbons with the notorious brand of questioning Scalia uniquely employed after he arrived at the Supreme Court. I have a distinct recollection of leaving the courtroom after this very disheartening experience. As we walked out the courtroom door, Hatch said to me, in words that are seared in my mind, “That fellow Scay-lee-ah. He thinks he’ll be on the Supreme Court one day. He’ll never make it to the Supreme Court.”
The court’s opinion was issued seven months later. Scalia rejected all the arguments I had made. He even added one argument he had personally devised – “not raised by appellant or amici” – and proceeded to crush that one as well. The experience taught me a valuable lesson that was, no doubt, an omnipresent principle for Antonin Scalia: Personal friendship, no matter how ancient, may never interfere with the faithful administration of justice.
