Antonin Scalia 1936 – 2016
With the sudden news on the passing of Justice Scalia, I think back to my brief interaction with him and the other justices on the Supreme Court on February 23, 2000. I was appearing before the court as Harris County Attorney on behalf of the county and the Sheriff’s Department to defend an employment policy. As a governmental agency, the county could pay law enforcement employees overtime in the form of banked hours instead of cash – hours that the employee can use to get time off well still getting paid. The employee could accumulate up to 240 hours of “compensatory time” and after that maximum, the county would have to start paying overtime in cash. To avoid this situation, the sheriff’s department would require the employee to “burn” their comp time by taking time off to reduce the accumulate level and avoid cash payments. The union did not like this policy and sued claiming that the process violated the Fair Labor Standards Act or FLSA. When the case was accepted by the Supreme Court, the Clinton administration’s Solicitor General intervened against us.
So, there I was arguing a civil case on behalf of law enforcement against a union lawyer and a lawyer from the Solicitor General for the Bill Clinton administration. As I watched the news of Justice Scalia’s passing tonight, one of the commentator “experts” explained that the Justice’s conservative ideology would show in his excoriating of lawyers for so-called liberal causes appearing before the court. The implication was that he was hard on lawyers for liberal causes and easy on those arguing for conservative issues. This was NOT my experience. In my case, Justice Scalia asked me difficult, probing questions certainly in a manner that was more aggressive and engaging than the others on the court. He was a great justice and certainly cannot be replaced.
I just listened to my argument with my kids. The interactive Audio can be found at https://www.oyez.org/cases/1999/98-1167 with Chief Justice Rehnquist introducing me at the 31:37 time mark.
I had not listened to it in many years and it is funny to notice the change in my voice and level of nervousness decreasing as the argument progressed.
We ended up winning our case in a 6-3 decision with an opinion written by Justice Thomas. In an interesting note, I met Justice Thomas 15 years later. I have a courtroom sketch of my appearance before the court and had it taken to him for an autograph. He inscribed it with, “Michael – We got it RIGHT. Clarence Thomas” It is a great heirloom.