I mean to follow the example of Samuel Johnson’s biographer, James Boswell, who insisted that his subject should “be seen as he really was.”4 He explained: “I profess to write, not his panegyric, which must be all praise, but [a part of] his Life; which, great and good as he was, must not be supposed to be entirely perfect. To be as he was, is indeed subject of panegyric enough to any man in this state of being; but in every picture there should be shade as well as light.”5
The pages of this book firmly disprove what George Bernard Shaw’s biographer wrote: “The later years of any great man are known to everybody who reads newspapers.”6 Little of what is printed here would be known to posterity but for its appearance in these pages—although some might say that the broad strokes were pretty apparent. Even that is questionable. Everything that matters emerges from the details, and readers should be able to make up their own minds. Perhaps all that can be asked—all that I ask, and I believe all that my late coauthor would have asked—is that if the text is to be read, it should be given a fair reading. Of course, “fair reading” is the method of interpretation about which he and I ended up writing copiously.7
* * *
1. This noun seems to have been an idiosyncratic Scalianism*—one he used often. The closest recognized word is the Briticism yobbo (= a lout, yokel, or hoodlum). As an Australianism, the verb yabber means “to babble, jabber, or prate.”
* This will be the only footnote to a footnote—a nod to David Foster Wallace. As you will come to see, I am not a fan of substantive (“talky”) footnotes, at least not in everyday lawyerly writing. But this isn’t everyday lawyerly writing. My purpose here is to explain why I’m using the spelling Scalianism instead of either Scaliaism or Scalia-ism. The answer is partly that the English language is generally inhospitable to vowel clusters. See Garner’s Modern English Usage 951 (4th ed. 2016) (s.v. “Vowel Clusters”). It is also partly that midword hyphens, when not necessary to prevent ambiguity, are aesthetically repellent—or, at least, are perceived this way by most readers of the American variety of Standard Written English. See ibid. at 751. The adjectival Scalian, meanwhile, is well attested in American English from 1982, and it sprang to great popularity in legal circles in the late 1990s. Scalianism makes every bit as much sense as the noun Americanism. We don’t, after all, say Americaism or America-ism—likewise with Australianism, Europeanism, Romanism, and Victorianism.
2. Catherine Drinker Bowen, Adventures of a Biographer 58 (1959).
3. C. P. Snow, Variety of Men xi (1967).
4. 1 Boswell’s Life of Johnson 30 ([1791] George Birkbeck Hill ed., L. F. Powell rev., 1934).
5. Id.
6. Frank Harris, Bernard Shaw xx (1931).
7. See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012) (especially pp. 33–41).
1
Preliminary Glimpses
(1988–2005)
In December 1988, at the age of 30, I was a featured speaker at the British Embassy in Washington, D.C., introduced by the British ambassador, Sir Antony Acland. Oxford University Press had agreed to join forces with the University of Texas to create the Texas/Oxford Center for Legal Lexicography, and I was named its director. In its most imposing, highly decorated hall, the Embassy was helping to promote this Anglo-American enterprise. I had brought the deal together by negotiating to have the Press and the university sponsor what was planned to become The Oxford Law Dictionary—which would have been the first and only historical law dictionary, something along the lines of The Oxford English Dictionary. At this event, I’d have about ten minutes to explain the project.
For me, one of the most exciting prospects of that evening was that Justice Antonin Scalia would be attending, and I looked forward to meeting him. Although he had been on the U.S. Supreme Court only two years, he was already acknowledged to be its most adroit wordsmith. For example, in a judicial opinion just months before, he had used the lexicographer’s arcane phrase hapax legomenon (denoting a word that appears only once within a corpus of writings). He was famous for his command of the English language, his flair for metaphor, and his unremitting argumentative rigor.
As I spoke that evening, Justice Scalia stood toward the back of the audience of 100, flanked by Robert Strauss, the powerful Dallas/Washington Democrat, who had somehow managed to drape himself across the top of a couch, and Senator Lloyd Bentsen of Texas, who at the vice-presidential debate just months earlier had delivered the memorably scathing riposte to the young Senator Dan Quayle: “I knew Jack Kennedy. Senator, you’re no Jack Kennedy.” So there was a good deal of excitement about Bentsen’s presence as well—even though he and Michael Dukakis had just lost the presidential election.
People at the event seemed enthusiastic about this monumental lexicographic undertaking. At the conclusion of the speakers’ remarks, I was determined to meet Justice Scalia and shake his hand. Drinks had been served, and I was being approached all around by lawyers and academics. I made my way to the back of the chatter-filled room, where the Justice was deep in conversation with Strauss and Bentsen. Closed off in a triangle, they were chuckling among themselves. I paused about ten feet away, thinking that great affairs of state might be their subject, and I shouldn’t intrude.
A few people were beginning to leave, but I was still being greeted by well-wishers: I had simply brought them to the back of the room with me. Finally, I excused myself from my immediate company and walked up to the three men. I was, after all, the reason for this get-together, and I thought they might welcome my greeting them. “Senator Bentsen, I’m Bryan Garner. So glad you could come.” I shook hands with all three. “Mr. Strauss. Justice Scalia, it’s great to know of your interest in the dictionary project.”
“It sounds promising,” Justice Scalia said, smiling politely.
They immediately turned back into their triangular huddle and resumed their discussion. A theater director would describe their “blocking,” or positioning of their bodies, as discouraging any further interruptions. And I believe there were none for the next ten minutes, until the cocktail party broke up.
Two years later, the Texas/Oxford Center for Legal Lexicography and The Oxford Law Dictionary broke up, too—quietly and unceremoniously, for insufficient funding. I would continue my work on dictionaries, but in different forms and without university sponsorships. I came to know Robert Strauss pretty well while teaching seminars at his D.C. office in the 1990s and early 2000s, but I never again saw Senator Bentsen. And I figured I might never again see Justice Scalia.
In late 1990, after the ignominious scuttling of the dictionary project, I turned entrepreneurial and founded the Dallas-based LawProse Inc., under whose aegis I began offering seminars on advocacy and transactional drafting. LawProse became an early success: within the first year, demand became fairly constant, and I was flying throughout the United States to lead seminars at law firms, corporate legal departments, and government agencies. These engagements—and, more important, the several books I published on legal writing and advocacy, as well as on English grammar and usage—raised my profile in the legal community. By the mid-1990s, I was invited to become editor in chief of Black’s Law Dictionary. Over the several unabridged editions that followed, I tried to make Black’s Law Dictionary a reputable source of legal scholarship. Essentially, it’s now close to what I would have produced had I completed The Oxford Law Dictionary.
Although I had no contact with Justice Scalia during this time, I admired him and his writing. Like every American lawyer, I read about him whenever he would write or say something noteworthy—which was often.
In 1995, I was asked to revise the Rules of the Supreme Court of the United States—not quite by the Court itself, but by an arm of the U.S. Judicial Conference. I had just played the lead role in revising the Federal Rules of Appellate Procedure, and some of the federal judges, appreciating my work, “volunteered” my services to the Supreme Court. One major feature of my revisions
had been to eliminate the word shall from the rules: it is notoriously ambiguous in legal drafting and therefore a frequent source of argument and even litigation. I apportioned its various responsibilities among must, will, is, and may, depending on context and meaning. To explain my editorial approach, I had written a little booklet for the U.S. government: Guidelines for Drafting and Editing Court Rules.8
Upon submitting my handwritten edits of the Supreme Court Rules, I learned that Justice Scalia and Justice Ruth Bader Ginsburg, the latter of whom I had known since 1992, were on the Court’s rules committee, along with Justice John Paul Stevens. I imagined they might have spent a day or so combing through my copious hand-marked edits, with marginal annotations keyed to my Guidelines. They rejected almost all my edits on the first few pages and then accepted almost all of them after that. I was fascinated: it was as if their resistance to being edited had been gradually worn down.
Chief Justice William H. Rehnquist alerted the lower federal judges who had offered my services that Justice Scalia was staunchly opposed to my deletions of the word shall. Today, shall has been almost entirely removed from the various sets of federal rules—except for those of the U.S. Supreme Court.
I never use the word myself.
* * *
8. http://www.uscourts.gov/sites/default/files/guide.pdf.
2
The Breakfast and the Interview
(2006)
Over the years, nearly 200,000 lawyers and judges have attended my various seminars. Teaching and traveling allowed me to make friends in all the major American cities, most of which I visit several times a year. For someone with a schedule like mine, Dallas is the perfect place to live: I can lecture from 9 o’clock to 4 almost anywhere in the country and still see my family that night. Travel is comparatively easy for someone whose routine entails it and whose bags always stay packed.
By 2006, I’d been going at this pace for 15 years and had written more than a dozen books. In my teaching, I began doing something I had long yearned to do: incorporating short video clips of interviews I’d conducted with judges, influential lawyers, and major writers. The snippets reinforced the points I was making about language and writing. I’d started the project of filming interviews in 2004, and by the spring of 2006 nearly 180 interviewees were in my film archives.
In early 2006, after filming my interview in Los Angeles with the noted novelist and essayist David Foster Wallace, David and I went to eat at McCormick & Schmick’s restaurant, then on South Hope Street.9 David had driven 90 minutes or so from Claremont to downtown Los Angeles. He seemed contented that evening, and I was happy to see him in such good form. He’d given up his trademark bandanna, and he seemed much calmer and more confident than when I’d seen him before. We had a good long talk. He seemed like a regular guy—not like the most revered novelist of his generation, the author of the famously thick and difficult book Infinite Jest.
Reflecting on the interview and thinking of other potential interviewees, he volunteered that he’d like to help me get an interview with his friend Jonathan Franzen. Then he said: “Have you interviewed Justice Scalia?”
“No. I’ve thought of that.”
“Do you know him?”
“Met him once at the British Embassy—years ago.”
“You should interview him.”
“If only I could. Well, I’ll try. Maybe I’ll write him.”
That casual conversation firmed up my resolve: I’d invite the Justice to do a filmed interview. After all, I’d already interviewed federal judges on all the circuit benches and lots of state appellate judges. I’d interviewed such august names in the legal field as Frank Easterbrook, Alex Kozinski, and Richard Posner. Perhaps I should be aiming at the U.S. Supreme Court. I assumed it might be considerably harder. With most federal judges, I’d just call chambers, get through to the judge (usually by identifying myself as the editor in chief of Black’s Law Dictionary), and ask for an on-camera interview. I served as my own camera crew, and I had gotten pretty good both at filming and at asking questions that would elicit useful, sometimes dramatic answers. There was no reason I shouldn’t use the same techniques for Supreme Court Justices, even if the initial approach had to be more formal than my usual 24-hour notice.
So on March 26, 2006, I faxed and mailed a letter requesting an interview:
Dear Justice Scalia:
In November of last year, I started a project of interviewing federal and state judges on the art of writing—on everything from briefs to law reviews to judicial opinions. I intersperse brief video clips in my lectures to law students, lawyers, and judges.
I’m on record as saying you’re our top judicial stylist (see Oxford Companion to the U.S. Supreme Court [2d ed. 2005] at 710). So naturally I’d very much like to interview you.
Although I’d be willing to travel any weekend to conduct an interview with you, the ideal times for me right now would be 4:30 or 5:00 p.m. on a day when I will be giving seminars in Washington: June 21, June 22, or June 23. Might you be available on one of those dates? The interview will last about 45 minutes.
Enclosed are two of my recent books. The first is The Winning Brief (2d ed. 2003), which I believe has much material that will interest you. Second is my Modern American Usage, an alphabetically arranged treatment of grammar and usage. I know that you’re a fan of Fowler. So am I, and I try (in what is undoubtedly an inferior imitation) to do the kind of work that Fowler would do if he were still alive.
Please let me know if an interview would be possible. It would be great seeing you again: I haven’t seen you since we met at the British Embassy in 1988.
Sincerely,
Bryan Garner
His response came more than a month later, in a letter dated May 5, 2006—by which time the invitation seemed to me like a distant memory. He thanked me for the books, especially Modern American Usage, and expressed admiration for “anyone who holds firm on imply and infer.” But he said he’d pass on the video interview. Nevertheless, he said he’d like to speak with me informally about shall vs. must (calling my position “Jacobin”) and suggested that I get in touch with Angela, his secretary, to arrange for a lunch.
Hmm. He wanted to talk about shall—or, rather, about my mostly successful efforts to supplant it with must in federal rules. Surprisingly, I thought, he seemed open to the possibility that I might convince him of the inadvisability of using shall in rule-drafting. Although I was disappointed about his declining a filmed interview, I figured that having a meal with him would be fun.
We agreed to meet for breakfast at 10:00 a.m. on June 23 at the Four Seasons in Georgetown. He also agreed that my daughter Caroline, who was interning at the U.S. Senate that summer, could join us. A mature 19, Caroline was a self-possessed young woman whose interest in history and literature, together with her affable ease, meant she could hold her own in any conversation.
The Most Important Meal
Caroline and I arrived at 9:30 and went to the restaurant early to ensure that we had a more or less secluded table. We tipped the hostess $20 and asked her not to seat anyone else near us, if possible. Then we went back to the front of the hotel and waited. At precisely 10:00, a black SUV drove up, and Justice Scalia emerged from the backseat. Caroline and I walked out to meet him.
“Hello, Justice Scalia.”
“Hello, Bryan. Good to see you.”
“This is Caroline. She’s just completed her first year at Yale.”
A loyal Harvard man, he grinned. “Sorry to hear that. Are they brainwashing you there, Caroline?”
“Probably. But I had a good year.”
“What are you studying?”
“History, mostly European.”
On our way down to the restaurant, Caroline mentioned that she had recently attended a lecture at the Supreme Court that Justice Scalia had given for Washington interns. I added that I’d heard that some of the questions he’d received were boneheaded. No, he said, they really weren’t so bad. Our conv
ersation was easy. He wasn’t a self-conscious man.
“I’m curious about what you do,” Justice Scalia said as we reached the table. “You must be awfully proud of Black’s Law Dictionary. The seventh and eighth editions have been superb. But you’re not one of these anything-goes dictionary writers, are you, like the people who did Webster’s Third?”
“Far from it,” I said, “but in Black’s Law Dictionary, the question of prescriptivism versus descriptivism doesn’t come up much. In my usage dictionaries, that question is very much at the fore. And in those books I’m unabashedly prescriptivist—though I use descriptive methods by citing lots of evidence.”
We had plunged straight into this conversation, barely interrupting ourselves to order coffee and breakfast.
“Caroline,” I said, “did you notice just now Justice Scalia’s reference to Webster’s Third? He much prefers Webster’s Second.”
Nino and Me Page 2