imageIn this post, I will tell you my Antonin Scalia story — and about his role in limiting class actions.

A deal

Late one night in 2012, my friend Joe Goldberg and I took I-95 south from Boston. We had just signed a memorandum of settlement with Comcast in a class action. We had also just missed the day’s last flight (and its final train) to New York but pressed on with the help of Hertz.

The U.S. Supreme Court had conferred about the nine-year-old case several times since Comcast had sought review in January. At 9:30 that morning, soon after the mediation began, we had checked the Court’s website to see whether its list of orders mentioned Comcast Corp. v. Behrend.

It hadn’t. We arrived in Manhattan early on a late-spring day. We felt good — and fortunate.

Some luck

Our luck didn’t last. Two weeks later, on June 25, the Court granted review after all. And the settlement collapsed.

Although we tried to enforce the deal, the district court found it non-binding. That the terms fit on a single piece of paper may not have helped.

Scalia’s role

Justice Scalia must have pushed to take Comcast. We won’t know for sure for awhile, but the evidence looks strong.

In the last Term of the Court, he had written a 5-4 majority opinion that, although foiling a class action, left open a key issue. The question concerned whether the test for expert opinion evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), applied to a pre-trial motion to certify a case as class action. The district court in the 2011 case, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), held that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. “We doubt that is so,” Justice Scalia wrote, leaving no doubt about how he would resolve the issue.

Why does that matter? Because in taking the Comcast case, the Court changed the Question Presented. It went from:

[W]hether a district court may certify a class action without resolving ‘merits arguments’ that bear on Rule 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).


Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

The bit about “admissible evidence, including expert testimony,” pertained to Daubert. Comcast provided a way to scratch Justice Scalia’s Daubert itch.

A presence

Because of that background, Justice Scalia naturally played an outsize role in how I got ready for the argument.

He had prompted the Court to “relist” the case an extraordinary eight times.

He had shown had a special interest in class actions. Most recently, he had written for the 5-4 majorities in Wal-Mart Stores, Inc. v. Dukes as well as another class-action killer, AT&T Mobility LLC v. Conception, 563 U.S. 333 (2011). And he did not like class actions at all, viewing them as distortions (if not perversions) of the classic model of contests between parties who come to court in person.

Plus he didn’t suffer fools gladly. His propensity for “sarcastic put-downs” and “tart wit” (per the Times‘s Adam Liptak) and comfort in a forum he had long ago mastered but I hardly knew made preparing with him firmly in mind non-optional.

I in short expected a hard time from Justice Scalia and prepared accordingly.

How to prepare for a debut

Having never argued in the Court before and with Justice Scalia as a motivator, I spent a lot of time getting ready. From June to November, my regimen included the following:

  • writing the brief on the merits (the best way to learn the cases and master the record)
  • typing out summaries of the main cases that the briefs cited — and many more
  • making a list of key excerpts from the record
  • doing practice arguments at Public Citizen and Georgetown Law School and a CLE program for a New York bar group
  • watching half a dozen oral arguments and listening to other arguments from the Court’s collection of audio recordings
  • researching the justices’ experience on the bench (only Justice Sotomayor had served as a district judge) and the history of the other side’s lawyer, Miguel Estrada, with the justices
  • talking with Tom Goldstein and others who had argued cases to the Court
  • reading “Thoughts on Presenting an Effective Oral Argument”, a 1997 gem by John G. Roberts, Jr.

Another important source of information came from Justice Scalia himself. In 2008, he co-wrote Making Your Case: The Art of Persuading Judges with my friend Bryan Garner. I found the guidance on oral argument especially worthwhile — notwithstanding the Roberts advice that we should “[b]e particularly skeptical of advice on how to argue an appeal from appellate judges.”

(By the way, if you go to an argument at the Court to help prepare for your big day, don’t count on having a chance to stand at the lecturn to see how the world looks from there. The Court’s courteous but stern security people would not allow me to do it, although I asked very nicely.)

The event itself

On November 5, 2012, I went second. My part lasted 30 minutes. I had a blast.

At the end of my argument, Justice Scalia wanted to ask me a question about Daubert. This exchange ensued:

JUSTICE SCALIA: Mr. Barnett, suppose — suppose we held that where — where there’s a bench 2 trial, it doesn’t make any difference what — what — whether the judge excludes the evidence under Daubert — I never know how to say it. Is it Daubert or Daubert?


MR. BARNETT: It depends on the time of day, Your Honor.


JUSTICE SCALIA: Yes, I think you’re right.


Justice Scalia gave every impression of enjoying oral arguments. He obviously adored language, and he loved verbal jousting, both on the page and in person. You have to admire the pugilistic exuberance.

But he went overboard with Comcast — and class actions generally. He’d worked hard to get the Court to take up Comcast in hopes of finishing the class-unfriendly Daubert business he could not complete in Wal-Mart Stores, Inc. v. Dukes.

He doubled down after we advised the Court that Comcast had not made a Daubert objection and had therefore forfeited the question, apparently leading the Court to convene a highly unusual post-argument conference and propelling the 5-4 majority to persist in spite of having to change the Question Presented after the argument. The maneuver prompted Justices Breyer and Ginsburg to write an extraordinary joint dissent, which they then delivered before arguments started in the first Affordable Care Act case.

Justice Scalia went on to author more  opinions against class actions, including American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013). And cases this Term carried a real risk that class actions would become far less useful and much rarer. He in fact did more than any other judge to limit class actions, and his absence from the Court may have saved many from oblivion.

Which raises the question: Will his successor feel less hostile towards class actions? Should she?