Son of Justice Antonin Scalia to Argue in Supreme Court Debut

Eugene Scalia is about to tie his father in the number of cases he’s argued before the US Supreme Court.

Though the late Justice Antonin Scalia heard thousands of cases in his 30 years on the bench, he only argued one during his time as an attorney. Now 47 years later, his son will do the same.

The Gibson, Dunn & Crutcher partner will take the lectern on Oct. 10 and try to convince the justices to uphold a New York-based appeals court decision that said corporate whistleblowers have to prove they were fired with retaliatory intent for reporting financial wrongdoing in order to win a wrongful termination lawsuit against their employer.

Eugene Scalia, who is representing UBS Securities LLC, has argued in briefs that the US Court of Appeals for the Second Circuit was right in holding intent is necessary for liability under the Sarbanes-Oxley Act.

Eugene Scalia’s brother Christopher, a legal fellow at the right-of-center American Enterprise Institute, said he wishes their father were here to see it.

“Of course Gene wouldn’t be arguing if my dad were still on the court,” he said. “But it’s very exciting and I know my dad would be proud to see it, as we all are.”

Eugene Scalia declined a request for an interview about his upcoming argument before the court. In a statement, he said he’s “grateful to have been given the privilege of arguing this important employment case, and of appearing before the Court that meant so much to my father.”

Strict Rules

Former justices’ direct descendants rarely argue cases before the Supreme Court.

At least four justices had sons argue there while they were on the court in the mid-1800s to 1900s, Clare Cushman, a resident historian at the Supreme Court Historical Society, recounted in a 2021 article in the Journal of Supreme Court History.

The first daughter to appear was Susan Brandeis, the daughter of Justice Louis D. Brandeis, who recused himself from the case in 1925, according to her obituary in The New York Times. Most recently, Justice Tom C. Clark recused himself when his son Ramsey Clark argued there in 1959 and had retired by his second appearance in 1972, according to the Journal of the Supreme Court.

Supreme Court justices weren’t required by law to step down from cases their relatives argued until Congress amended the recusal law to include the high court in 1948, according to Cushman.

Eugene Scalia, 60, became a partner at Gibson Dunn in 1998 while his father was still on the bench, but he has never appeared before the Supreme Court until now. His father had a strict rule for his second of nine children: Eugene couldn’t benefit financially from the firm’s Supreme Court advocacy work.

“The firm had to take whatever fees we earned in Supreme Court cases and subtract that from the total earnings net profit of the firm in any given year and then give Gene his proportionate share, so he never earned any money from any Supreme Court matters we had,” said Bill Kilberg, a retired Gibson Dunn partner who was a family friend of the Scalias and served as a mentor to Eugene.

Since Gibson Dunn is a relatively big firm, Kilberg said the amount subtracted wasn’t much.

When then-President Donald Trump nominated Eugene Scalia to be labor secretary in 2019, he reported having made $6.2 million the year before between his partnership share and bonus. Confirmed without a single Democratic vote, Scalia went on to serve in the cabinet role until January 2021.

As a corporate lawyer, Scalia has a record of winning legal arguments against policies aimed at helping workers. It’s why Democrats and labor unions opposed his confirmation to head the Labor Department under Trump and blocked him from being confirmed as solicitor, DOL’s No. 3 official, in the George W. Bush administration.

His most controversial decision as labor secretary came during the pandemic when he refused to issue an emergency temporary standard to protect workers from being exposed to Covid-19 on the job. The AFL-CIO ultimately sued DOL’s Occupational Safety and Health Administration to force the issue.

Kate O’Scannlain, who served as labor solicitor during the Trump administration, said Scalia got a lot of flak for refusing to issue the emergency standard, even from people within his own department. Democrats insisted the regulation was necessary to save lives of essential workers.

“The majority of my career folks would not help with any of that legal work, so a very small team of us had to do all the briefing when we were sued and it was on an expedited basis,” she said.

The US Court of Appeals for the D.C. Circuit ultimately upheld the department’s decision.

Friendly Faces

Scalia is the only person to have served as both Labor Department solicitor and labor secretary, according to his bio on Gibson Dunn’s website.

When he moved from private practice back to the department, he brought his own desk with him, which had previously been the one his father used at the Supreme Court until his unexpected death in 2016, said Patrick Pizzella, who served as deputy labor secretary under the younger Scalia.

Eugene Scalia inherited his father’s sarcasm, quick wit, and clear writing style, Kilberg said.

“He has an uncanny ability to find the right example or the right phrase to make a point,” he said of the former English major who wrestled with whether to be an English professor or a writer after graduating from the University of Virginia before ultimately deciding to attend the University of Chicago Law School.

In court on Tuesday, Scalia will face another newcomer in his opposing counsel. Easha Anand, co-director of Stanford Law School’s Supreme Court Litigation Clinic, is also making her debut argument. And like Scalia, Anand will see a friendly face on the bench: She clerked for Justice Sonia Sotomayor in the October 2015 term. (Of the nine justices on the Supreme Court, Sotomayor and four others were on the bench with Justice Scalia.)

Though Eugene Scalia will tie his father next week in the number of cases they’ve argued, it will be months before he finds out if he’s also matched his father’s win rate.

The one case that Antonin Scalia argued as an assistant attorney general in the Justice Department in 1976—a complicated dispute over money cigar importers mistakenly paid to the Cuban government—he won.

A decision in Eugene’s case Murray v. UBS Securities LLC is expected before the end of June.

—With assistance from Ben Penn.