WASHINGTON—Longtime fans of Associate Justice Antonin Scalia were rewarded Monday when the U.S. Supreme Court released to the public archival footage of the jurist’s pivotal 1986 audition for a seat on the nation’s highest court.
According to legal scholars, the previously unseen video, which features a fresh-faced 50-year-old Scalia sporting a shock of flowing jet-black hair and energetically riffing on the framers’ original intent, provides an early glimpse of the developing talents of the up-and-coming judge, who would eventually emerge as one of the nation’s preeminent interpreters of constitutional law.
“He was still pretty green then, but even so, you could tell he had a lot of raw talent—he absolutely killed with this prepared bit he did on the Commerce Clause,” said retired justice John Paul Stevens, who in the tape can be heard off-camera playing the role of a dissenting judge as Scalia is tasked with analyzing the constitutional underpinnings of Roe v. Wade. “Watching it now, his take on the Second Amendment seems really rough, but you can see how he would eventually develop that early concept into his famous District of Columbia v. Heller majority opinion.”
“There was something special there, even if he stumbled a little while citing key provisions from the Federal Rules of Civil Procedure,” Stevens added. “Of course, at the time he was only a couple decades out of law school.”
“He was a little wild, that’s for sure, but you could tell he was ambitious. I remember thinking, ‘Man, this guy is the most determined statutory textualist I’ve ever seen.’”
Recorded before an audience of high-ranking officials that included all nine members of the Burger Court, Attorney General Ed Meese, and senior White House staff, the 30-minute video shows Scalia being put through the paces of the Supreme Court’s legendarily difficult auditioning process, which consists of rigorous mock hearings and jurisprudence drills, as well as a cold read from a randomly chosen amicus curiae brief, all performed on the institution’s famed courtroom floor.
Though his aggressive style of oral argument was still unpolished at the time, and there were no openings currently available on the court, Scalia was reportedly told his name would be kept in mind in the event a spot opened up.
Ultimately, experts have said, the tryout opened doors for the fledgling jurist by allowing him to showcase his now-trademark originalism, noting in particular a segment of the tape in which he delivers what onlookers described as a memorable five-minute, extemporaneous oration on the constitutional illegitimacy of gay rights and the Miranda rule.
“I’d previously been out with our scouts to see him judge at the D.C. Circuit once or twice,” said former Supreme Court clerk H. Geoffrey Moulton, referring to the court of appeals that has famously served as a talent incubator for the federal judiciary, providing many future justices—including judicial legends John Roberts, Ruth Bader Ginsburg, and the popular Fred M. Vinson—with a place to hone their skills. “He was a little wild, that’s for sure, but you could tell he was ambitious. I remember thinking, ‘Man, this guy is the most determined statutory textualist I’ve ever seen.’”
“So, we decided to bring him in for an audition to see what he could do,” Moulton continued. “Some of my colleagues felt he was still too wet behind the ears, but I was interested to find out how he’d perform on a bigger stage.”
A few months later, Scalia would get that chance when the Supreme Court needed a new justice and the U.S. Senate unanimously approved his nomination.
When told by reporters that his audition tape had been released, Scalia admitted that he himself hadn’t been very impressed with his performance at the time, noting in particular that he “bombed” his interpretation of the state action doctrine.
“Oh, wow, they dug up that old video?” said a chuckling Scalia, who recalled that he was so nervous during his tryout he “practically sweat through [his] robes.” “I can only imagine what people in that room were thinking when this Italian kid from Queens came in there quoting those clichéd old Oliver Wendell Holmes opinions and waving his gavel around. But hey, I got the gig.”
Court watchers expect the Scalia video will prove far more popular than the release last summer of Associate Justice Clarence Thomas’ audition tape, in which the then-42-year-old judge spent a full half hour staring into the camera in complete silence.
