Four weeks to go in the term, and the Court handed down three opinions, which involved Medicare fraud, securities fraud, and labor union shenanigans. After your hosts discuss those opinions, Zack interviews veteran journalist James Rosen about his latest book Scalia: Rise to Greatness. James shares some of his best memories of the late Justice and shows what a debt he owed to his extraordinary wife, Maureen Scalia. After that, GianCarlo quizzes Zack with trivia about journalists at the Court.
GianCarlo Canaparo: Welcome back to SCOTUS 101.
Zack Smith: Welcome back indeed. There’s not as many opinions this week as there were last week, but I know one thing for sure, GC. The next couple of weeks are going to be doozies.
Canaparo: Yeah, no kidding. Well, I’ll start us off with our first opinion of the week, U.S. ex rel. Schutte versus SuperValu. This was a unanimous decision by Justice Thomas where the court held that the scienter, that is intent element of the False Claims Act, refers to a defendant’s subjective belief, not what a reasonable person would think.
The False Claims Act forbids someone from knowingly submitting a false claim to the government. Now, lots of statutes create the right to make claims, the statutes at issue in this case, the Medicaid and Medicare statutes, allow drug retailers to make claims for their usual and customary drug prices. The drug retailers here regularly sold their drugs at discount prices, but they billed the government for the base price. So was this a knowing falsehood? The lower courts said no, because reasonable people would think that the base prices were the usual and customary ones, but the Supreme Court disagreed because what matters is whether the retailer believed that its discount prices were the usual prices.
Smith: Next up we have Glacier Northwest versus Teamsters. This is an eight to one decision by Justice Barrett, which Robert Sotomayor, Kagan and Kavanaugh joined in full. The court held that the National Labor Relations Act, the NLRA, does not preempt Glacier Northwest State law tort claims against a local labor union that went on strike with the alleged intent to harm Glacier’s property. Glacier Northwest sells ready-mix concrete in Washington state. It combines the ingredients necessary to make the concrete and then loads the concrete into specialized trucks for delivery. Because concrete hardens and becomes useless if not promptly delivered, time is of the essence for Glacier’s business, where still the concrete will destroy the delivery trucks if left the harden in them.
Now knowing this information, the International Brotherhood of Teamsters, local union number 174, which serves as the exclusive bargaining representative for Glacier’s truck drivers, ordered a work stoppage during a contentious contract negotiation after Glacier had already mixed and loaded concrete into at least 16 trucks.
Now, glacier was able to stave off any damage to their trucks, but it lost the concrete it had already mixed due to this stoppage. So Glacier sued the union for damages in Washington State Court claiming that the union intentionally destroyed the company’s concrete and that this conduct amounted to common law conversion and trespass to chattels. The Union on its part, argued that the NLRA preempted Glacier’s claims because the driver’s conduct was arguably protected by that statute.
The Washington Supreme Court ultimately agreed with the union and dismissed the case. But the US Supreme Court disagreed, saying that the union had not put forth enough evidence showing that the NLRA arguably protected the driver’s conduct. Justice Thomas, he concurred, joined by Justice Gorsuch, where he emphasized the oddity of the court’s previous holding in San Diego Building Trades Council versus Garmin, which implemented a broad preemption regime for the NLRA. Under that holding, the NLRA displaces state law even where conduct is only arguably protected by the federal statute. Justice Thomas said the court should revisit this ruling in an appropriate case.
Justice Alito also issued a concurrence in which Justice Thomas and Justice Gorsuch both joined, and Justice Alito wrote separately to emphasize that the NLRA does not protect striking employees who engage in the types of conduct alleged in this case. He also suggested that if the state court’s on remand dismiss this case on the ground that a complaint was pending before the National Labor Relations Board, that would make the case, quote, a good candidate for a quick return trip here. Justice Jackson was the lone dissenter and she said that whereas here, there is a complaint pending before the National Labor Relations Board, courts including the Supreme Court should suspend their examination and that the Garmin case makes clear that courts have no business delving into these particular types of labor disputes at this time.
Canaparo: And last up was Slack Technologies versus Pirani. This was a unanimous decision by Justice Gorsuch where the court held that if you want to file a lawsuit under the Securities Act of 1933, alleging that a company issued stocks with a misleading registration statement, you actually have to have bought some of those stocks. Slack technology issued some stocks and Pirani thought that the stocks registration statement was misleading and it sued. The only problem, Pirani didn’t allege that he bought any of those stocks. The Supreme Court said this was a fatal error to the claim and ordered it dismissed.
Smith: Details, details. Right after this, my interview with James Rosen, where we discuss his new biography, Scalia: Rise to Greatness.
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Smith: I’m pleased to be joined today by James Rosen, the Chief White House correspondent for Newsmax. His new book, Scalia Rise to Greatness, which is the first of a two volume biography of the Late Justice was recently released. James, thanks for joining the show.
James Rosen: Zack, it’s great to be with you.
Smith: Well, I appreciate you taking the time. And I guess my first question for you, James, is what made you want to write a biography about Justice Scalia?
Rosen: Well, I was privileged to know Justice Scalia a little bit. One of the first things I did when I came to Washington to be a young Washington correspondent at the time for Fox News way back in 1999 was to write to Justice Scalia to seek an interview with him, because I’d been fascinated with him for about 15 years at that point or a little less. But I had seen him on television as a high school student on PBS in the mid-eighties and just thought he was fascinating and very lively and funny.
And my request for an interview commenced between us a lengthy and often comical correspondence that spanned about two years time. And it led to us having a pair of off the record lunches at his favorite place, now long gone, called the AV Ristorante Italiano, a very modest Italian restaurant that he’d been going to since the 1950s that at the time was located in a slightly sketchy part of Washington DC. And we drank wine together, he made me eat off of his plate. I was like, “Mr. Justice. No, I couldn’t.” He’s, “Come on, come on, come on.” So now I’m shoveling vegetables off of Justice Scalia’s plate into my mouth. And he even drove me back to my office both times in his car.
And Zack, I’ve been able to confirm through my interviews for this book with classmates of his who traveled with him for debate tournaments way back in the 1950s, all the way up through Supreme Court clerks in the 21st century, that being a passenger in a car driven by Antonin Scalia was as unnerving an experience for them as it had been for me. There are legions of stories about his bad driving. And in fact, when I told one clerk that
I had been a passenger in his car, the clerk said to me, “God help you.”
And so he was very kind to a young reporter a long time ago. And from that I resolved at the time that someday I will write about this man. The contents are substantive discussions at those lunches will remain off the record as they were, but I hope to publish in the second volume from our exchanges of correspondence, which were often very unusual and amusing to see what he would say on letterhead that bore the imprimatur of the Supreme Court.
Smith: Now, tell us a little bit about their research process, James. This is a very lengthy book. It has many, many pages of end notes. How did you go about researching and preparing to write this book?
Rosen: So it was five years in the making, and the very first thing I did, Zack, I thought quite sensibly was go out and read the existing biographies of Antonin Scalia, and I found that there were two. Both were published during his lifetime, one of them he cooperated with extensively, the other not at all. And both of these biographies came out in much the same place, which is to say openly hostile to Justice Scalia and his legacy and his jurisprudence, and even his conduct.
And so this book, Scalia: Rise to Greatness, 1936 to 1986 is certainly the most comprehensive account of his life. This first volume ends with him taking his seat on the Supreme Court and the second volume is intended to treat his Supreme Court tenure. It is, I like to say, the first accurate biography of Antonin Scalia because it’s the first admiring one. And so here all of the phases and episodes and important influences and figures of his first 50 years are treated for the first time with the requisite depth and scope that they warrant. Some of these phases and episodes and individuals were barely touched upon or not mentioned at all in the previous hostile biographies. So this means that here for the first time, we get a full accounting of the depths of Scalia’s Catholic faith and how that really provided the fuel for his rise to greatness.
And also the first really intimate and appropriate portrait of the contributions of Maureen Scalia to Justice Scalia’s rise to greatness, because she raised their nine children, as the Justice always said, with very little assistance from him. And I’m pleased to say that some of the early reviews of this book have suggested that while Antonin Scalia is the star of the book, Maureen Scalia is the hero of the book.
Smith: Absolutely. Well, I want to come back to Justice Scalia’s faith and the role that Maureen Scalia played in his rise in Washington DC. I want to talk about the other biographies and how yours differs for one more second. I know in your book, you mentioned that some of the other biographies and other articles written about Justice Scalia push a careerist narrative of his time in Washington during the Nixon and Ford administrations. What do you mean by that? And more importantly, why do you disagree with that?
Rosen: So starting with one particular column written about him in the 1980s when Scalia was a judge, a federal judge, an appellate court judge, but then continuing in full flower with the two previous biographies, a narrative of his rise to the Supreme Court was promulgated that depicted him not as the beneficiary of devout faith, innate genius, a capacity for hard work that was unmatched and of course the love and sacrifice of Maureen Scalia, but rather depicted his rise to greatness as simply the result of careerist cunning on his part, that at all points where he was called upon to issue a legal opinion of some kind or where he wrote as an academic, he was not giving expression to a thoughtfully considered legal viewpoint that was rooted in his religiosity and his reverence for text and so on. But rather he was simply putting out opinions that he thought would curry favor with more powerful figures who could advance his rise.
And I interviewed colleagues of Scalia’s from every phase of his life. Students from his high school years, lawyers who served with him in the federal government at different points. And all of them told me, no matter what period of time they knew him during, that that careerist narrative was not only false, but one of them used a barnyard epithet for it. They said the fact is that Scalia at all points issued opinions, A, that he himself wouldn’t necessarily agree with because he was adhering to the original meaning of the constitution or attack or statute or what have you. But he issued opinions that he knew would be unpopular and would not in fact curry favor, but perhaps in some cases cause additional political headaches for the people who had been in a position to advance his career.
And so one of the important elements of my book is that in addition to telling the story of Antonin Scalia with much greater documentary and personal rich detail than has ever been arrayed before, sometimes I pause the action to show how these previous biographies treated just about every phase and episode of his career and his life in the most tendentious light. And so there’s kind of a literary criticism element to the book as well.
Smith: Very interesting. What role do you think Justice Scalia’s father played in his rise to greatness, if you will, particularly how do you think his father and his father’s career influenced Justice Scalia’s textualist approach to interpreting the law?
Rosen: So one of the recurring themes of Scalia: Rise to Greatness is that Scalia’s story is nothing less than the embodiment of the American dream, and he was acutely aware of this. Scalia’s father came to the United States in 1920 with $400 in his pocket and not speaking a word of English and made of himself a renowned professor of romance languages. Scalia’s mother was herself the daughter of Italian immigrants, and she became a school teacher, and they were devout Catholics. From these three central influences, the sacred foundational texts and liturgy of the Catholic Church, the influence of his father, who in his own published academic writings warned of the perils of the distortion of an original meaning of text by the translation or interpretation of a dishonest translator interpreter. And from the influence of his mother who venerated form in the classics and such matters as composition and grammar and so forth.
Young Nino Scalia emerged with a profound reverence for the original meaning of sacred texts. They were not to be monkeyed with, and of course he carried that into his work as a jurist. He had an experience in high school, Xavier High School, a Jesuit run military academy at the time, from which he graduated as valedictorian, that he recounted for the rest of his life, he called it the Shakespeare principle. And what happened was there was a teacher in his high school who had a profound influence on him named Father Tom Matthews, an Irish Jesuit priest who spoke with a thick Boston Irish brogue and who took no nonsense. And one day they were reading Hamlet and a wise guy in the class, not Scalia, pipes up and says something sophomoric and snarky about the play.
Rosen: And Scalia never forgot what happened next, and he recounted it to his dying day. He called it the Shakespeare principle. Father Tom Matthews glared down at the aforementioned wise guy and said to him in that thick Boston Irish brogue, “Mister, when you are reading Shakespeare, Shakespeare is not on trial. You are.” And again, it meant for Scalia the inviolability of certain foundational and sacred texts, and that factored centrally into his work as a jurist.
Smith: Excellent. Now, you mentioned Marine Scalia, Justice Scalia’s wife of many, many years. Is it fair to say that she is really the unsung hero behind Justice Scalia’s rise to greatness?
Rosen: Until now, yes, and I’m very pleased to have been able to devote a sufficient space to the role of Marine Scalia in the lives of Antonin Scalia and their children. One of the Scalia daughters said at her father’s memorial service, to anyone who knows the both of them, Nino and Maureen, it is clear that Maureen was, she said, “As smart as, or dare I say it, smarter than my dad.”
And Justice Scalia always said that Maureen Scalia raised those nine kids with very little assistance from him. And I interviewed four of the nine Scalia children, they told me by no means was their dad an absentee father. He worked very long hours, nights, weekends, that’s recorded in his FBI files. And then as he rose throughout the executive and judicial branches, he was called upon more and more to travel.
There’s one point in 1976 when he’s working in the Ford Administration and he has to run all of his requests for foreign travel past the National Security Council, so there’s a rich record in the Ford Library of the NSC invariably approving Nino Scalia’s various requests for foreign travel. So in the year 1976, we see him three or four times going over to Europe for ABA conferences and the like. And he’s spending two, three, as much as six days at a time at overseas. And in the year 1976, the Scalia’s had eight of their nine children and they ranged in age from one year old to 15 years old. And I say in the book, for Maureen Scalia, living, loving saint, tireless mom, these were the hardest days. And it gets to the heart of her contribution, but she was every inch his intellectual equal and certainly didn’t shrink from giving him hell when, for example, she didn’t like his opinions.
Smith: I think in the book you recount one particular instance of that. Can you tell us about that?
Rosen: Yes. This was a 1989 case where Justice Scalia ruled that individuals who burned the American flag were protected in their right to do so as a matter of First Amendment free speech protection. Maureen Scalia disagreed with that ruling. Scalia himself always said that the ruling went against his own personal preferences, as he used to like to say, “I’m a law and order conservative type. I don’t want to see sandal wearing bearded weirdos burning the American flag,” he would say. But if you’re going to adhere to the original meaning of the First Amendment and its text, he thought it was constitutionally protected. The next day when he trudged down for breakfast in his bathrobe, he found the entire house festooned with American flags and Maureen Scalia had arranged for the playing of the song, Grand Old Flag.
Smith: Excellent, excellent. Now another theme throughout your book seems to be Justice Scalia’s early adoption of certain technology in his work and his life. And I’m curious if you think his early service in the Office of Technology policy helped spur that interest? You talk about how they were talking about internet related concepts before anyone knew what the internet was or would be, how he was one of the first judges to bring a word processor into the courthouse. Tell us about Justice Scalia and his relationship with technology.
Rosen: As one of his colleagues and lifelong friends from the seventies onward, let’s say, told me, Nino got technology, he understood it. His first job in government, hired when he was about 34 years old, he was hired by someone named Clay Tom Whitehead. Tom Whitehead was himself in his early thirties, a little younger than Scalia. And Tom Whitehead was a genius and a visionary, deserves a book in his own right. He had multiple degrees, advanced degrees from places like MIT, and he had worked for the Rand Corporation and he was on the ‘68 Nixon campaign when he was very youthful.
And he understood, Tom Whitehead did, that telecom, telecommunications, was the future of America, in technological terms, in financial terms, in economic terms, in global leadership terms. And he proposed to the Nixon folks that they should take the sprawling telecom policy that existed in the year 1970 and which was spread over many competing agencies like FCC and the State Department and so on, and consolidate that policy under administrative control of the White House. The Nixon people said, great idea, go run the agency.
So the first thing Tom White had did was hire as his general counsel, a guy a couple years older than him named Antonin Scalia, and I’m the first researcher to really dive deeply into Scalia’s papers from his time at this new brand new agency, created by the Nixon administration called the White House Office of Telecommunications Policy, or OTP. And the main objective of Whitehead and Scalia, who functioned as a kind of Butch Cassidy and Sundance kid in this early era of the telecom revolution, was to force on the other agencies on the bureaucracy against its will, naturally enough, a policy that they wanted to adopt. It was called Open Skies.
Rosen: And the idea was to take the launching of domestic space satellites, which is so critical to telecom development, which at the time in the early seventies was the monopoly of a quasi-public, quasi-private entity known as Comsat, and apply to that business of launching domestic space satellites, free market principles such that any qualified corporation with the requisite technical prowess and capital reserves would be allowed under the law to launch a domestic space satellite. And Scalia and Whitehead implemented that policy, that Open Skies policy, and fusing domestic space satellite launches with free market capitalist ideas, turbocharged the telecom revolution and gave us the telecom landscape we have today.
And as part of his papers, I found a 1971 draft by Scalia in which he talked about what he called the Computer Society, and he predicted that in the future remote users at terminals would not only be able to watch several hundred channels of television, but would do their banking remotely from these terminals and would even be able to retrieve information from just about any library in the world.
Rosen: It was nothing less than a prediction of the internet. He even predicted the intended privacy concerns that would arise with this technology, where citizens might not even have the chance to opt out of having their information placed in this new network. And he predicted the massive economic injection into American life that telecom would represent.
So again, it’s a period of his career that has been treated in a much more tendentious light by the previous biographers, and I’m very proud of all the OTP documents where we see Scalia’s wit and his brilliance. There was one occasion where he arranged for his OTP colleagues to visit the place where he had formally taught law, the UVA Law School in Charlottesville, and he sent a memo explaining to them how it’s going to work, and he told his colleagues that I will be there at all times for continuity and charm.
Smith: So you get a flash of the Justice Scalia whit.
Smith: Even then.
Rosen: Even in the early seventies.
Smith: It’s interesting, we do a number of interviews on SCOTUS 101 and one of our previous interviewees, John Bash, he served as a clerk for Justice Scalia, and one of the things he talked to me about was it always struck him that Justice Scalia, then in his late sixties, edited his opinions using red lines and track changes in Microsoft Word, and he would get chicken scratch notes from much younger, much less tech-savvy individuals than Justice Scalia.
Rosen: The story in the book appears of an LBJ appointee on the appellate bench when Scalia served there in the early eighties, who in his own oral history recounted the site of entering Judge Scalia’s chambers at that time and seeing him working on a word processor, which had never been seen at the Court of Appeals for the District of Columbia’s circuit. And the judge recounted this almost with the fascination of watching a seal balance a ball on its nose or something.
Smith: Now, I know you wrote another book about former Attorney General John Mitchell and that you know a great deal about the Watergate scandal. I’m curious, since Justice Scalia came to Washington in the wake of Watergate and was working in government in the wake of Watergate, how did Watergate affect his views on the executive branch of the federal government and his views on executive power?
Rosen: Watergate dismayed Antonin Scalia, who by 1976, at which point Richard Nixon had resigned and been pardoned and so forth, that’s when Scalia turned 40 years of age. He saw Watergate both as a tragedy and the personal failings of an accomplished man in Richard Nixon, but also as part of an element of a larger, broader spiritual decline in the West to be considered alongside what to Scalia were the unwelcome reforms of Vatican two, the counterculture, radical chic, and other dismaying trends of the seventies. At the time, in August 1974, Scalia had been nominated by Richard Nixon, the President, in his final days to serve as the Assistant Attorney General for the Office of Legal Counsel. It’s a very important job at the Justice Department. It is described as the president’s lawyer’s lawyer, the official whose job it is to field requests for binding legal opinions from anyone in the executive branch, from the president on down, and to tell them, in a legal opinion, whether what they wanted to do was lawful or unlawful.
And unfortunately for Scalia, Nixon resigned before the Senate could take up his nomination. Ford allowed the nomination to go through, and Scalia was confirmed in August 1974, a few days after Nixon resigned and before he’d been pardoned, Scalia as a justice later liked to boast that his commission, his official commission for this position was a collector’s item because they had to rewrite the language just for him to take account of the fact that he was nominated by one president and appointed by another.
But in that time, when he served in the Department of Justice in this post Watergate era, Scalia’s very first assignment was to rule on who owned the Nixon tapes. He came to the unpopular conclusion, not even welcome by his colleagues in the Ford Administration, contrary to the careers narrative, that it was Nixon who owned his tapes. And the Congress immediately, in an outrage, passed legislation to seize control of the Nixon tapes. To Scalia’s great delight, he was later vindicated after former President Nixon’s death in 2000, the court of appeals for the District of Columbia Circuit, obviously after Scalia had left for the Supreme Court, ruled that the Nixon estate did indeed have an ownership stake in the Nixon tapes, and the US government agreed to pay the Nixon estate in the year 2000, $18 million for those tapes.
But in this post Watergate era, a lot of greedy and reckless ideas were flying around from the Democrat controlled Congress and the news media about what should happen to the presidency in the intelligence community in the wake of Watergate and its subsidiary scandals and revelations about past CIA abuses and so forth. Scalia and a group of conscientious conservative lawyers of the time, who held no real affinity for the lost cause of Richard Nixon, nonetheless believed that after Watergate and its subsidiary scandals faded, the country would need a strong executive.
And both in his legal opinions and in his extraordinary performances testifying before Democrat run committees, including the Pike Committee at the time, Scalia championed the preservation of the powers of the presidency. And he also found himself approving all covert operations that were proposed by the Ford Administration for a while. He couldn’t believe, here I am, this kid from Queens and they’re coming to me to give me all this information about covert operations.
One example that’s told in the book for the first time is that on the afternoon of April 30th, 1975, the fall of Saigon, the Ford White House contacted him and said that they needed a legal opinion from him within three hours as to whether it would be lawful under the War Powers Act for us helicopters to land on the roof of the US Embassy in Saigon and evacuate our personnel that way. Which of course, we’ve all seen those famous images, it did take place. Scalia did provide the legal opinion saying it was lawful, but he said, and again, this appears in Scalia: Rise to Greatness for the first time, “What if I hadn’t given the approval? Would they have called off this evacuation operation on advice of counsel? What is the world coming to,” he said.
Smith: Wow. Now if you can, tell us briefly about Justice Scalia’s relationship with two other men who would be very impactful throughout his career and professional lives, his relationship with Robert Bork and Larry Silverman.
Rosen: So Judge Bork and Scalia were really dear friends and their families hung out and they were very close in the years before Judge Bork’s first wife died after a nine-year battle with cancer. And Eugene Scalia, the justice’s eldest son, a prominent attorney in his own right and formerly a cabinet officer under President Trump, told me that one time the Scalia’s held a party in their house, and when everyone had left, his dad wheeled around and said to him, this is why you study and you work hard in school, so you can grow up and have friends like Bob Bork.
And so there was great admiration. Bork carried on a very lonely assault on the excesses of the Warren Court at a time when Scalia was still at OTP working on a number of telecom policies. And for the majority of their friendship until Scalia was appointed to the Supreme Court, it was widely assumed that Bork was going to get there first, because he was in a sense the bigger conservative star in the nascent conservative legal movement. As it happened, when they both served on the Court of Appeals together, a case arose involving First Amendment law where Judge Bork wrote the controlling opinion, but in which he started to write a bunch of things that sounded heretical to Scalia’s ear and almost like a call to arms for the very imperial judiciary that the two men had spent the last 15 years denouncing, with Judge Bork talking about the need for there to be an evolution in libel law to take account of modern problems with libel law, that this should occur, this evolution, even if it admits into the process and element of judicial subjectivity.
This was heresy to Scalia, and he wrote a sharply worded concurrence taking direct aim at Bork, and Bork never forgot it. And the story goes into detail about how Bork learned that it wasn’t going to be him, but Scalia who got that nomination to the Supreme Court, and what it was like for Judge Bork when reporters started calling him and asking about Nino and publishing stories about how Scalia got the elevation to the Supreme Court because he was younger and he didn’t smoke and he wasn’t overweight and all this sort of thing.
But that opinion, that difference of opinion in the case of Oman V Evans and Novak, and Scalia’s concurrence really hurt Judge Bork’s feelings. And as late as 1989 after politics and fate had settled with cruel finality, this friendly rivalry between the two men, Judge Bork retired from the Federal Bench, wrote a book in which he revisited the Oman concurrence. He didn’t mention Scalia by name, but he basically said in that passage that anyone who would espouse the views of that concurrence had no business being a judge or even a law professor.
But just as those cracks formed in his bond with Bob Borg, and he wept at Bob Borg’s funeral.
Rosen: He started his great friendship with Ruth Bader Ginsburg, and we can talk about that separately. You also asked about Larry Silverman.
Rosen: So Silverman hired Scalia for that job in the Ford administration to be the Assistant Attorney General. And he said as others, even before, even earlier in the 1970s, said to me, “I knew when I first met this man and interviewed him for that job in 1974, that he was going to wind up on the Supreme Court.” And Silverman effectively ran the Justice Department in those days and relied on Scalia a lot as the so-called President’s lawyer’s lawyer.
Rosen: They formed a deep friendship. It’s not exaggeration to say that Larry Silburn was Scalia’s closest friend. They would insult each other’s ethnicity, they would knock back wine at the AV Ristorante. Whenever either one of them was up for some new job, and both of their careers rose meteorically, they would confer with each other about what to do. There’s a scene in the book where at one point Larry Silverman addresses Antonin Scalia as, “You dummy.” And I said in my interview with him, not too many people probably ever addressed Antonin Scalia as, “You dummy.” And so he’s a key source in the book, and he really was Scalia’s chief booster at critical moments.
Smith: Excellent. Now, I know this is the first volume of a two volume, a series on the life and legacy of Justice Scalia. When can we expect the second volume?
Rosen: Right now, there is a projected date of late 2025. I will tell you that one individual who was less than pleased to see this project metastasized from a concise biography of the man, which is what I originally started out doing, into a Mammoth two volume set, was Mrs. Rosen, who with some justification was displeased at the ensuing a two-year extension on Justice Scalia’s lease on the lives of the Rosens.
Rosen: But so that gives me impetus to try and finish it.
Smith: Well, the first volume is excellent. I know we are all looking forward to the second volume. And I have a final question for you, James. It’s why we ask all of our guests here on SCOTUS 101. If you could have a conversation with any justice, living or dead, who would it be and what would you talk about? Even though you just wrote a biography on Justice Scalia?
Rosen: I’m, I’m pleased to tell you that as a function of my work on the Watergate era, my reporting for Fox News and other organizations over the years, I have attended oral argument, I’ve covered oral arguments, and I’ve interviewed, I think, six or seven, former, sitting or future justices. I conducted the last ever interview with the late Warren Berger just six months before he died. I spent a couple hours with him, and that was when I was working in my book about Attorney General Mitchell, which was called The Strong Man: John Mitchell in the Secrets of Watergate, and asked him about allegations that had just been published in the Haldeman Diaries, showing that Chief Justice Berger sought to influence judicial appointments, threatened to resign in a huff at one point to the President and so forth, and got his responses to those various allegations.
I interviewed Justice Clarence Thomas for this book. There are other interviews for this book which will be revealed in time. And I guess to the question you posed, if I could have conversation with any justice, living or dead at this point, I absolutely would want it to be Justice Scalia, so my second volume would be better informed.
Smith: It’s a good answer.
Rosen: I’m a sensible man.
Smith: It’s a good answer. Well, James, I know you stay very busy as the Chief White House correspondence over at Newsmax, working on the second volume of Justice Scalia’s life. Thank you for taking the time to join us today. It’s been a great conversation and I hope to have you back when the second volume comes out.
Rosen: Zack, I’m indebted to you and I will tell you one thing else. You have a great radio voice. You really do.
Smith: I also have a great radio face, that’s what my family and producer tells me, so.
Rosen: Well, they’re mistaken. Thank you for your kindness.
Smith: Well, thanks for coming on.
Canaparo: All right, Zack, it’s trivia time. Your favorite time, I know. Don’t bother responding, I know it’s true.
Smith: Absolutely my favorite time.
Canaparo: So your interview with James got me thinking about famous cases and interesting facts about the court and the press. So in that vein, it’s SCOTUS Press Trivia. Are you ready?
Smith: As ready as I’ll ever be. Let’s do it.
Canaparo: All right. I’m going to start you off easy. This case, probably the most famous case related to the press and the Supreme Court, establish the actual malice standard for defamation. What is the case?
Smith: Well, it may be a famous case, GC, but it’s very controversial, especially these days. It is New York Times versus Sullivan.
Canaparo: Correct. Well done, Zack. Now, question number two. We all know the rule from New York Times versus Sullivan, but what were the facts that gave rise to the case?
Smith: Well, if I’m remembering correctly, the New York Times had run a full page ad essentially supporting Martin Luther King Jr. but there were some minor inaccuracies in the ad, and so because of that, Alabama officials, I believe it was the Montgomery Chief of Police, sued the New York Times for defamation, and initially in Alabama state courts had recovered a substantial sums of money.
Canaparo: Well done, Zack. Yes, that’s exactly right. All right. The New York Times was involved in another very famous Supreme Court case involving a trove of infamous documents. What was the case and what were the documents?
Smith: Well, the only case that comes to mind involving an infamous trove of documents is the Pentagon Papers case.
Canaparo: That is correct. New York Times versus the United States. The court there held that the President could not force the times to suspend publication of the classified information contained in those papers. Zack, you’re doing very well. Going to make things a little harder.
Smith: Of course you are. Of course you are, GC.
Canaparo: Yes. Yes indeed. All right. So contrary to general public perception, a reporter is not totally immune from having to reveal his sources. What is the rule governing when a reporter can be forced to disclose his sources, and what case is it from?
Smith: Well, the rule, roughly speaking, very roughly speaking, I believe essentially the government has to show that there’s a compelling need for the information and that they can’t readily get the information in any other way. In terms of the case, I’m not sure offhand what the case would be.
Canaparo: Well, you’re almost there on the rule. It is not only compelling, but compelling and paramount state interest that could not be obtained any other way, and which contains information about crimes. The case is Branzburg versus Hayes.
Canaparo: Now, last up. This is a hard one. Branzburg was decided during the Berger Court and Justice Byron White wrote the opinion. That’s not a coincidence, according to Justice John Paul Stevens, who in 2012 gave an interview revealing a strange tidbit about Chief Justice Warren Berger’s assignment practices in cases involving the press. What did Justice Stevens reveal?
Smith: Well, I don’t know this specific interview, GC, but I remember recalling, I think Chief Justice Berger was a bit of a press hound, so I’m sure he would take decisions that he thought would make himself look good or something to that effect.
Canaparo: Yeah, that’s almost exactly right. Chief Justice Berger would always assign to himself cases in which the court was going to rule in favor of the press and would always assign to Justice Byron White cases in which the court would rule against the press. Not surprisingly, even though Justice Berger was in the majority in both classes of cases, his tactic worked very well. Journalists often reported, and still probably to this day have a sense in their minds that Justice Berger was a great friend to the press and took a much dimmer view of Justice White.
Smith: Sneaky, sneaky Chief Justice Berger. Well, very interesting trivia today, GC.
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