As Bryan Gowdy stood before the U.S. Supreme Court in November 2009, he found himself in a bit of a verbal tussle with Justice Antonin Scalia.
In the Graham v. Florida case, Gowdy was arguing that sentencing juveniles in non-homicide cases to life without the possibility of parole was both cruel and unusual.
Cruel because it gives up on a child early in life. Unusual because, at that point, such a sentence had only been imposed 30 times in six states. (About three dozen states allowed the sentence.)
Gowdy felt Scalia was trying to pin him down to say he thought every time something was unusual that it had to be unconstitutional.
“That was not our argument,” Gowdy said.
The two had a few spirited exchanges on the issue, which didn’t surprise Gowdy, the attorney for Terrance Graham.
“I expected him to be tougher with me,” Gowdy said of Scalia.
He knew going in Scalia’s stance would be the opposite of his. It also was opposite of what Scalia’s peers ultimately decided several months later in a 6-3 victory for Gowdy’s only appearance before the court.
The justice was predictable in that he always stood true to his principles, Gowdy said.
It’s one of the well-known attributes of Scalia, who died unexpectedly Saturday at 79 after serving nearly 30 years on the country’s highest court.
He was an imposing figure. Bombastic at times, humorous at others, often animated.
Scalia was an originalist of the Constitution, a staunch defender of what he believed were the intentions of the men who framed that document.
Scott Makar said Scalia was single-mindedly focused on the stability of the Constitution.
He said Scalia felt other parts of government, such as the legislative side, could be flexible to change with the times. But, not the Constitution.
“There is plenty of play in the joints of other parts of government,” Makar, now a judge on the 1st District Court of Appeal, said of Scalia’s belief.
Maker argued five cases before the court when he was Florida’s solicitor general, including representing the state in the Graham case against Gowdy.
That was one of four cases Makar argued in the 2009-10 session, which he said is a record for a state solicitor general. He also had a case in the 2007 term.
Makar has a 3-2 record before the Supreme Court. Scalia sided with Maker’s arguments all five times, including one case where it looked like that wasn’t going to happen.
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, Makar said Scalia and the other conservatives on the court were “more hostile to us because they were trying to establish a new theory.”
The Walton County case dealt with allegations the state of Florida violated the U.S. Constitution’s Takings Clause, which limits the power of eminent domain and entitles residents to “just compensation” if their private property is taken for public use.
Walton County officials wanted to add 75 feet of sand to nearly 7 miles of eroded beach, which drew objections from beachfront property owners.
At one point in the hearing, Makar saw that Scalia truly understood Florida’s property laws.
“I realized then the case was over and we were going to win,” he said. “It was an eye-opening moment.”
Even when Scalia was sparring with him, Makar said he never took it personally. “It was his way of hearing things out,” Makar said.
He believes Scalia’s “let’s think out loud and discuss these things” approach is something the court will miss.
The court also will miss the intellectual depth of Scalia’s inquiries, which required lawyers from both sides to defend their positions.
Scalia was never boring, often making comments that drew laughter in the courtroom.
Rod Sullivan saw that when he was arguing in the Atlantic Sounding Co. v. Townsend case in March 2009.
Sullivan said his client was denied medical care after being hurt while on a tugboat, which substantially worsened the man’s condition.
The question before the court was whether the man was entitled to punitive damages.
In a brief exchange, Scalia was pushing Sullivan to acknowledge that if his client had died, he would have no right to punitive damages. Sullivan agreed that was accurate.
Scalia recounted a discussion from his law school days where, because there was a compensation limit for wrongful death, they used the “back her up again” line.
“You know, the line was back her up again — back her up again, Sam, she’s not quite dead yet,” Scalia said to great laughter in the courtroom.
Sullivan won the case 5-4, with Scalia in the dissent. Sullivan said his client later reached a settlement with the company.
Circuit Judge Virginia Norton got to know Scalia in a setting outside a courtroom. Norton is in the LLM program at Duke University School of Law, in which Scalia taught a class in 2015.
One day, Norton asked the justice to lunch and he agreed. He then turned to his Secret Service agents and said, “Is that OK?”
Norton and several classmates enjoyed a couple of hours with Scalia, whom she described as “very warm and very welcoming.”
Norton said Scalia was never a trial court judge and was fascinated by juries. He had a great desire to discuss the jury system, she said, and was interested in how average Americans weighed in as jurors.
Norton was intrigued by Scalia’s desire to learn something about the jury system, in which he was a staunch believer.
Scalia and his wife have a vacation home off the coast of North Carolina, but that didn’t stop Norton from trying to get him to visit Amelia Island or Ponte Vedra.
“I was doing my chamber of commerce thing for Jacksonville,” she said with a laugh.
She and others praised Scalia’s writing skills, particularly when authoring a dissenting viewpoint. His opinions are noted for their lively writing, satirical retorts and sharp arguments.
Norton said Scalia talked about how a strong dissenting opinion could help strengthen the one written for the majority.
She said his writing has influenced how she crafts her rulings. She makes sure to include the non-prevailing argument in her written rulings, partly to show during appellate reviews how those arguments were considered in her decision.
Norton said what she found “beautiful” about Scalia was how he believed in the American people. “I know he had a great faith in average Americans,” she said. “He really believed in the right of Americans to decide important issues.”
She said she enjoyed her brief time in getting to know him in a way most would never get a chance to.
What else did she learn about him? He has a lot of grandchildren (36), he liked the beach and loved beer.
Traits he shared with many average Americans.
@editormarilyn
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