Nino and Me
Page 1
Advance Praise for
NINO AND ME
“Even those who lean a little to the left will find this intimate portrait of Justice Scalia fascinating, funny, and deeply loving. A Scalia–Garner collaboration based on a ferocious dedication to the language of the law leads to a friendship that is challenged at times by comic misunderstandings, almost disastrous arguments, and the foibles of both men. The ending of this vivid story is almost unbearably poignant.”
—DR. BETTY SUE FLOWERS
DIRECTOR EMERITUS, LBJ LIBRARY
PROFESSOR EMERITUS OF ENGLISH,
UNIVERSITY OF TEXAS
“Justice Scalia was one of the most controversial and influential jurists of the late 20th and early 21st centuries. He was lionized by the political right, and often demonized by the left. In this memoir, he is humanized by Bryan Garner, who paints a sympathetic but frank portrait of their friendship in the justice’s twilight years. The justice is often cranky or peevish, but he can also be warm and funny, and Garner’s story shows the broad spectrum of his intellect and temperament—and offers a rare glimpse into the intellect and private persona of a man who, whether you love him or hate him, helped shape American law for decades.”
—BRIAN R. MELENDEZ
PARTNER, BARNES & THORNBURG
MINNEAPOLIS
“One day on the way to the Forum, Bryan Garner met his modern-day Cicero, Justice Antonin Scalia. Their friendship blossomed, and it is celebrated with obvious enjoyment in Nino and Me (not Nino and I, you’ll be pleased to read). At every step of his conversation with Justice Scalia, Bryan Garner is alert to language issues, and one of the triumphs of the book is the manner in which—together—they prod, and examine, and then demystify many of the totems of legal English.”
—JOHN SIMPSON
CHIEF EDITOR OF THE OXFORD ENGLISH DICTIONARY (1993–2013);
AUTHOR, THE WORD DETECTIVE (2016)
“Bryan Garner’s first venture in biography is both erudite and witty, and the influence he and the Justice had on each other makes for a wonderful and profitable read.”
—HON. ROBERT HENRY
FORMER CHIEF JUDGE (RET.),
U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
PRESIDENT, OKLAHOMA CITY UNIVERSITY
“Bryan Garner’s elegant Nino and Me captures both the essence and the details of a historic man as only a confidant could. Garner illustrates Justice Scalia’s generosity and his temper, his panache and his idiosyncrasies, his charm and his fastidiousness—and nothing more completely than the Justice’s love of English, the ‘mother tongue,’ which Garner reveals through private vignettes recounting the pair’s many discussions spanning a decade. Those who have enjoyed the books that Justice Scalia and Garner jointly produced will find a new appreciation for the effort that those works required. Those who have not will learn what a fortunate pairing the two proved to be. And all will enjoy the benefit of what those who knew Justice Scalia wished for after he passed: a few more hours with the Justice, faithfully provided by a man who loved him well.”
—JUDD STONE
MORGAN, LEWIS & BOCKIUS
LAW CLERK TO JUSTICE SCALIA, 2014–2015
“Bryan Garner has written a unique book steeped in affection for a truly mesmerizing person. It is deeply illuminating about the persona of ‘Nino’ Scalia. All future biographers will need to consult this book. But it is also a heartfelt, moving, and sometimes quite funny tale of a deep friendship forged initially by Garner’s and Scalia’s shared status as what David Foster Wallace labeled ‘snoots,’ obsessives about lexicography and grammar (about which Garner is a world-class expert with strong views). One does not have to be a snoot oneself—or even a devotee of Justice Scalia’s jurisprudence—to appreciate the humanity of this book.”
—SANFORD LEVINSON
W. ST. JOHN GARWOOD PROFESSOR OF LAW,
UNIVERSITY OF TEXAS
AUTHOR, FRAMED: AMERICA’S 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE
“Early in Nino and Me, one learns that a ‘snoot’ is someone who cares obsessively about words. Antonin Scalia and Bryan Garner were both snoots. This sparkling memoir of Professor Garner’s collaboration with the Justice provides innumerable insights into grammar and usage, the law and advocacy, and how two strong-willed professional sticklers can nonetheless make a joint project work. Through it all, one comes to see the qualities that drew people to Justice Scalia regardless of whether they agreed with his jurisprudence.”
—ERNEST YOUNG
ALSTON & BIRD PROFESSOR OF LAW,
DUKE LAW SCHOOL
“We all think we know Mr. Justice Scalia, whether as the hero of conservative jurisprudence or as the bogeyman of liberal nightmares. Bryan Garner, though, gives us Nino Scalia the man. It’s refreshing to get a glimpse of the human side of one of our age’s true intellectual giants, who could be equally passionate about the principles of constitutional interpretation and the merits of different editions of Webster’s dictionaries.
“Garner gives us a portrait of the collaboration, and the occasional clash, of two champions of the English language—or ‘snoots,’ as they’re called. Nino and Me is a surprisingly touching account of two friends who shared a legal philosophy, a devotion to clear communication, and a passionate commitment to ‘snootitude.’ ”
—JACK LYNCH
PROFESSOR OF ENGLISH,
RUTGERS UNIVERSITY–NEWARK
AUTHOR, YOU COULD LOOK IT UP & THE LEXICOGRAPHER’S DILEMMA
“By the end of this book, those who never met the Justice will feel they know him well. But Garner’s entertaining book does so much more: it explores the challenges and rewards of scholarly collaboration, it explains and defends the textualist approach to statutory and constitutional interpretation, and it captures the sheer joy that the two main characters derived from mastering the English language. Their shared ability to communicate with precision, concision, and verve makes this book a real page-turner.”
—THOMAS R. PHILLIPS
FORMER CHIEF JUSTICE (RET.),
SUPREME COURT OF TEXAS
BAKER & BOTTS L.L.P.
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The names and details of the U.S. Marshals Service have been changed so as not to compromise their important work. Also, for the sake of simplicity, no distinction has been made between the U.S. Marshals Service and the Supreme Court Police; only insiders would notice, anyway.
Suggested musical pairing for those who read with background music: Edvard Grieg’s Peer Gynt, Suite No. 1, Op. 46, and anything by Luigi Boccherini.
To the memory of
David Foster Wallace
(1962–2008),
without whose intervention the events recounted after page 12 of this book could never have occurred
Contents
Epigraph
Prelude
Introduction
1. Preliminary Glimpses (1988–2005)
2. The Breakfast and the Interview (2006)
3. Making Your Case: Part I (2006–2008)
4. Making Your Case: Part II (2009)
5. Reading Law: Part I (2009–2010)
6. The Wedding (2010)
7. Reading Law: Part II (2010–2012)
8. The Fruits of Our Labors (2012–2015)
9. Prep
aring for Asia (2015–2016)
10. The Asia Trip (Jan.–Feb. 2016)
Epilogue
Postscript
Acknowledgments
About the Author
Index
snoot /snüt/, n. (2001) [Acronym for either syntax nudnik (or nerd) of our time or Sprachgefühl necessitates our ongoing tendance] A person who cares intensely about words, usage, and grammar, and who adheres to a kind of enlightened prescriptivism that assesses language for its aptness, clarity, succinctness, and power. • The term was first used in print in the April 2001 issue of Harper’s Magazine, in an essay entitled “Tense Present,” by David Foster Wallace, who described it as familial jargon with more-positive connotations than the dysphemisms grammar Nazi, usage nerd, syntax snob, and language police.—Sometimes written as SNOOT.
Prelude
This story begins with three professional snoots: a novelist, a lexicographer, and a textualist judge. The novelist wrote a long essay entitled “Tense Present” about the lexicographer and his usage dictionary. As a result of that essay, the novelist and the lexicographer soon became friends, and the judge, having read the essay, became a fan of the novelist. Appreciating from afar the judge’s linguistic virtuosity, the novelist suggested that the lexicographer seek out the judge. Those two soon became friends—and, what is more, collaborators. The lexicographer in turn suggested that the judge should meet the novelist. Those two liked each other as well. But soon there were only two snoots left: the lexicographer and the judge. Although some of the events that ensued in the following years may seem far-fetched, they are in every respect true—to the best of the lexicographer’s ability to recollect and record.
Introduction
Antonin Scalia was a man of strong likes and dislikes: one was that he relished long paragraphs and recoiled from single-sentence ones.
He was at once conservative but nonconformist; temperamental but companionable; epicurean but admiring of asceticism; passionate but duty-conscious; thoughtful but unremorseful; rotund but athletic; ultracompetitive but compassionate; serious but often impish. At turns he could be jovial or tetchy; demanding or forgiving; taciturn or talkative; curmudgeonly or resigned; pugnacious or agreeable; stubborn or acquiescent. With his expressive, almost perfectly symmetrical face—his high forehead accentuated by hair neatly combed straight back, his ruddy cheeks that would crease into dimples when he grinned, his long philtrum above a protuberant lower lip, and the slightly cleft chin punctuating his squarish jaw—he was quick to smile when amused, and predisposed to guffaw with unreserved gusto. At five feet nine, he had a stocky frame with rounded shoulders, and he moved always with purpose, even determination. His burly, sun-spotted hands gesticulated with Sicilian flair. If something displeased him, his visceral reaction would almost instantly be clear to all present as a matter of body language before manifesting itself in words. He put a great deal of stock in a person’s conversational skills: he appreciated good discussions and resented poor ones that wasted his time. He was a gifted raconteur whose mind was well stocked with pertinent stories and jokes, but he consciously avoided repeating any to listeners who had already heard them. He dreaded the idea of seeming trite and banal. He liked most things classical and detested most things newfangled. Upon the mere mention of the composer Edvard Grieg, he would burst into a boisterous rendition of “In the Hall of the Mountain King,” a rousing movement of Grieg’s Peer Gynt. His taste in popular music, on the other hand, ran only as far as the Andrews Sisters’ “You Call Everybody Darling” (1948), and he felt impelled to leave a 2010 wedding reception when the band began playing something as “rock-’n’-rolly” as an early Beatles song. He liked unpretentious refinement and deplored the manners of what he called “yabbers”1—especially the incorrect grasping of a fork at table and the epidemic of men’s wearing hats indoors, particularly at restaurants. He was a proudly old-fashioned man who took pleasure, upon mention of the latest fad, in declaring absolutely no knowledge of it.
Yet with nine children having entered various fields—including law, the clergy, the military, the humanities, and business—he was hardly out of touch: he well understood the more enduring features of American life. He was skeptical of people’s motives but moderately susceptible to flattery. Although his mind was suspicious, his heart was welcoming—and the latter won most close conflicts. He was an intellectual enfant terrible of the right who relished “teaching against the class”—that is, affronting the complacent notions of politically committed people by pointing out uncomfortable truths incompatible with their ideas—especially if their ideas were left-leaning. His favorite rhetorical device was the reductio ad absurdum, and he was a relentless debater who could be defeated resoundingly only when he wasn’t present. Bad press seemed to affect him not in the slightest. Never outwardly diffident, in private he was an intellectual pugilist who would sometimes retreat when confronted by a knowledgeable opponent whom he trusted. He was prone to what one of his colleagues called “summer thunderstorms”—temperamental outbursts that would pass quickly, leaving no remnant. What he admired he praised freely, but he never gave empty compliments. He reveled in words and knew their power, and his strong aesthetic sense flexed itself as much with language—even penmanship—as it did with music, architecture, and art. He had as many close female friends as male ones. He enjoyed the “manly” activities of hunting, cigar-smoking, and hearty eating and drinking. He was a trencherman. But he also knew his limits, disapproving gluttony and lauding those with the self-restraint to curb hedonistic pursuits.
He liked bright-line distinctions and clear rules; he abhorred blurred lines and fuzzy indecisiveness. Adoring of his parents, he rebelled against his father—if he rebelled at all—by becoming an even more devout Roman Catholic at a time when his father was an unbeliever. He preferred a Latin Mass on Sunday and bristled at Masses featuring folk music. As a teenager in New York, he had been something of a heartthrob on a TV show about adolescent etiquette. In a way that he could never have imagined then, he later became an intellectual heartthrob to many. But despite all the beautiful law-student devotees who sought him out for pictures and autographs at every public event, he was a husband of unwavering devotion with nothing but an amused chuckle and a signature for his young admirers. “Maureen knows all about my groupies!” he’d say with a grin. He loved the routine of doing yardwork alone and of playing poker regularly with friends.
Those who loved him did so with fervor and devotion; those inclined to loathe his ideas were more often than not disarmed by how much, upon meeting him, they were drawn to him—and at how cogent and intelligent his ideas were when fairly presented.
In perhaps the unlikeliest collaboration in the recent history of legal writing, we wrote two books together. We appeared onstage together more than 40 times, teaching, exhorting, admonishing, and trading gibes. We dined and traveled together. This book is my remembrance of him and our time together.
When he died in February 2016, we had before us three unbegun (or barely begun) projects: a series of ten or so videotaped interviews in which I would ask him everything about his life and philosophy (to be published posthumously in book form, we agreed); a three-volume collection of his speeches, which I had agreed to edit and had already sorted for him into three categories (law, religion, and civics); and a two-night engagement at Carnegie Hall, to be called “An Evening with Justice Antonin Scalia,” in which he agreed to a pedagogical interview before a live audience: he would answer any question I might ask him in the two-hour presentation. Profits would be quietly given to Legal Aid because fundraising was not allowed (the gift would not be publicized in advance). Having begun our performances at the Kennedy Center for Performing Arts in 2008, we were both eager to book Carnegie Hall.
“Bryan,” he told me when I agreed to edit his speeches, “the important thing is that we continue working together.” This memoir is undertaken in the spirit of making good on that commitment. Although death ends a life, it doe
sn’t end a friendship.
In reflecting on her classic biography Yankee from Olympus, about Justice Oliver Wendell Holmes, the biographer Catherine Drinker Bowen wrote that many old friends of the great Justice resented her writing about him. In her words, they “owned Justice Holmes, or thought they did, lock, stock, and barrel.”2 Perhaps that comes with the long friendship of a great person. I certainly encountered it with some of Justice Scalia’s friends and acquaintances. I’ve met many who knew him much longer than I did. One, a law professor, told me outright that she had tried to talk him out of collaborating with me because she thought he shouldn’t have “conferred equality” on a non-Justice. Another told me that Justice Scalia detested his projects with me: “He’s always complaining about working with you,” she said.
I make no claims about the intensity of our friendship relative to others, and I certainly don’t claim that the Justice Scalia I present in these pages is the only or the definitive version. He was a complex man. He was also a simple man, paradoxically enough. But he was definitely his own man. Nobody owned him.
It was one of the most fortunate and unlikely events of my own life to become his coauthor and, what is more important, his friend. This resulted, as you will see, from an audacious proposal on my part. And it almost went bad before it really started—through a serious misunderstanding. But I get ahead of myself. Having shared the relationship that I did with the man, I would feel remiss if I didn’t share with his many admirers—as well as with anyone else who cares to learn more about him—the Antonin Scalia I came to know so well.
You will notice that the book is replete with direct quotations. While it would be foolish to claim that they are all verbatim, I can say with assurance that all the conversations took place, that many are indeed word for word, and that the rest are at least close. I had the benefit of diaries and notes I’ve kept over the years. Also, as I often told Justice Scalia, I considered every visit or trip with him an important event. So I was exceedingly alert to him and have a vivid recollection of our discussions. I invoke the astute admonition of the English writer C. P. Snow, who observed in reference to a memoir: “When I report remarks in direct speech, I believe that my memory is accurate, and that they were said in those words, or in words closely similar. I have a pretty good memory, but not a freakish one. I have never met anyone who can totally recall a long conversation over a period of hours, much less of years.”3 Nevertheless, Snow said, the remarks had stuck in his memory, and he could vouch for them even though they had been made in the course of long conversations. The decision to include dialogue in this book was an easy one: without Justice Scalia’s spoken words, the book would have presented a sterile, abstract picture of an immensely dynamic man—which in itself would have been an unjust portrayal.