Scalia & Garner: Moderation in the pursuit of justice

In 1964 Barry Goldwater famously proclaimed that “extremism in the defense of liberty is no vice … and moderation in the pursuit of justice is no virtue.” Perhaps Goldwater was right. But when advocating on behalf of a client, perhaps not:

Select the most easily defensible position that favors your client. Don’t assume more of a burden than you must. If, for example, a leading case comes out differently from your desired result, don’t argue that it should be overruled if there is a reasonable basis for distinguishing it. If you’re arguing for a new rule in a case of first impression, frame a narrow rule that is consistent with judgment for your client.

Don’t let your adversary’s vehement attacks on your moderate position drive you to less defensible ground …. And don’t let your adversary get away with recharacterizing your position to make it more extreme.

“Making Your Case”, pp. 19-20.


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