I have recently received a copy of a letter that Justice Scalia wrote to then-D.C. Circuit judge Ruth Bader Ginsburg in August 1991 in response to her inquiry whether he might want to “kill all the law clerks” who worked on his opinion concurring in the judgment in the 1989 ruling in United States v. Stuart.
I have a particular interest in Scalia’s letter to Ginsburg, as one of my first assignments as a law clerk for him in the Court’s 1991-1992 term consisted of helping him draft the letter. But I think that the letter might be of broader interest for several reasons: It reflects Scalia’s special regard for Ginsburg. It dismantles a shoddy attack from the legal academy. And it supports Scalia’s later criticism (in his separate opinion in Kansas v. Nebraska (2015)) of the American Law Institute’s Restatements of the Law: namely, that as “the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be …. it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.”
The legal question in Stuart involved the meaning of a treaty between the United States and Canada. In his separate opinion, Scalia opined that the language of the treaty “resolves the issue presented” and that it was improper to look to the Senate floor debates on the treaty to determine its meaning:
The use of such materials is unprecedented. Even where the terms of the treaty are ambiguous, and resort to preratification materials is therefore appropriate, I have been unable to discover a single case in which this Court has consulted the Senate debate, committee hearings, or committee reports.
Scalia proceeded to observe that while the ALI’s “Restatement of the Foreign Relations Law of the United States would permit the courts to refer to materials of the sort at issue here,” that permission “must be regarded as a proposal for change, rather than a restatement of existing doctrine, since the commentary refers to not a single case, of this or any other United States court, that has employed the practice.”
Several months later, Harvard law professor Detlev Vagts published in the American Journal of International Law a short pompous essay, titled “Senate Materials and Treaty Interpretation: Some Research Hints for the Supreme Court,” that sarcastically purported to give Scalia the “assistance and guidance” that his law clerks had failed to provide him. Yale law school professor Harold Koh celebrated Vagts’s supposedly “devastating rejoinder.”
Judge Ginsburg wrote Scalia asking whether Vagts “has a point” and whether Scalia might want to “kill all the law clerks” who worked on Stuart. (Scalia’s class of law clerks that year, by the way, included the current dean of Harvard law school.)
Scalia responded at length to Ginsburg, stating that while “I have learned not to care about unfair academic commentary in general, … I do care about your regard for my precision and scholarship.” Scalia shows that Vagts’s general critique completely misses the mark: none of the cases Vagts cites involves a use of Senate materials for the purpose of determining the meaning of a treaty. (I’m pleased to note that law professor Malvina Halberstam independently recognized Vagts’s fundamental error, as did Edwin Williamson, the State Department’s top legal adviser.)
Scalia further shows that Vagts is also wrong in almost every particular. Scalia concludes:
In short, Ruth, to respond directly to the questions in your year-ago note: I do not think Prof. Vagts “has a point” that I was “a bit rough on the Restatement.” I would not “kill all the law clerks”—though I would certainly fire one that submitted a piece of work such as the one under discussion here. I cannot imagine how it got published in the American Journal of International Law—do they do no cite-checks? If it left you with the misimpression that the Restatement had substantial support (and that Scalia is pretty careless), I am sure that it did the same to many others. You I care about.