“Yes, I do!” he said. “It had standards. Webster’s Third, the 1961 edition, eliminated most of the usage labels. The editors accept infer as a synonym of imply!”
“We’re a Webster’s Second kind of family,” said Caroline.
“Really?” Justice Scalia asked with mild surprise.
“Yes. I’m afraid I’ve spent hundreds of hours with it,” she said.
“How can that be?” asked Justice Scalia, looking as if he was on the verge of laughter.
“Starting when I was 11, my dad hired me to mark a copy of Webster’s Second—underlining every legal term in the book. I was looking for ‘Law’ tags.”
“What?” he said, chuckling incredulously. “That sounds like child exploitation.”
“I got a dollar for every legal term I found,” Caroline said.
“She loved the J’s,” I said. “And the L’s weren’t bad. She made quite a bit of money.”
“Why would you do that?” Justice Scalia asked me.
“Because Webster’s Second, first published in 1934, is particularly strong in its treatment of legal terms. The great Roscoe Pound of Harvard Law was special consultant to Merriam-Webster, and he did an extraordinary job.”
“So your work, Caroline,” said Justice Scalia, “was helpful to your father in Black’s Law Dictionary?”
“Well, I sure hope so!” she said, laughing.
“You must have learned lots of things just spending hours and hours scouring the pages of that great dictionary.”
“I think so—though I couldn’t tell you what.”
“So,” Justice Scalia said, turning back to me, “Webster’s Second was reasonably prescriptivist, and Webster’s Third became wildly descriptivist—without any judgments about right and wrong.”
“The point,” I said, “is simply to make linguistic assessments that accord with linguistic realities. In the past, lexicographers often just guessed, and grammarians recommended wordings that no significant part of the population actually used. It’s no use saying that self-deprecation is wrong and self-depreciation is correct if no one actually says it.”
“Self-depreciation? Who recommends that?”
“Fowler, for one.”
“I love H. W. Fowler.”
“So do I,” I said, “but he’s quite dated on lots of points, like the term self-depreciation. I have essentially the same sensibility as Fowler, but I write with the benefit of more linguistic data.”
“But Fowler was so witty. No one compares to him there. ‘The writer who produces an ungrammatical, an ugly, or even a noticeably awkward phrase, and lets us see that he has done it in trying to get rid of something else that he was afraid of, gives a worse impression of himself than if he had risked our catching him in his original misdemeanor.’ That’s fantastic.”
“Yes, it is,” I said. “Fowler’s my hero. That’s from his entry ‘Out of the Frying Pan.’ ” I was astonished that he could recite it by memory.
“You know that!” Justice Scalia leaned back and grinned.
“Of course. It’s classic.”
“How do you know Fowler so well?”
“By 18, before leaving for college, I had committed to memory about everything in the usage books by Fowler, Bernstein, and Partridge. I was obsessed by their writing.”
“You know this stuff much better than I do.”
“I do it professionally. But you’re the legal writer everyone admires.”
Justice Scalia chuckled. “You know, I got it from my father,” he said. “He was a professor of Romance languages in Brooklyn. He really inculcated in me an appreciation for language. Even when I became a judge on the D.C. Circuit, he would correct my opinions after they were published.”
“He must have been awfully proud. Did he live to see you become a Supreme Court Justice?”
“No. Both he and my mother died shortly before. I’ve always regretted that.”
“Oh, I’m so sorry to hear that. How did your father correct your opinions?”
“He was a stickler for the subjunctive mood of the verb. The D.C. Circuit had a form order that said: ‘It is ordered that the district court’s judgment is reversed.’ My father insisted that it should be subjunctive after the verb ordered. So it should have been It is ordered that the district court’s judgment be reversed. You see?”
“Yes. Your father was right.”
The conversation continued in this vein for quite some time. Caroline asked how much of the writing in opinions is actually done by the Justices, noting that in senators’ offices, all sorts of papers and letters get sent out without the senators’ direct knowledge. Justice Scalia said that conditions aren’t anything like that at the Court, but he acknowledged that he used clerks to do his first drafts. I remarked that he certainly put his own stylistic stamp on opinions to a greater degree than any other Justice.
He agreed, but added that law clerks at the Supreme Court often come up with good stuff on their own—they are top students who have proved their talents, and they’re trying hard to match his voice. He mentioned an opinion that would soon be coming out in which he used the phrase turtles all the way down. He asked whether either of us knew the allusion. We didn’t.
He explained that it’s part of our cultural heritage, with a long provenance in religion and philosophy. It alludes to a myth that the world rests on the back of an elephant, and the elephant is said to rest on a turtle. “And what’s under the turtle?” comes the inevitable question. “Well, it’s turtles all the way down.” Justice Scalia had used the phrase a week before to characterize the reasoning in a concurring opinion by Justice Anthony Kennedy as a sort of infinite regression.10
I ventured my assessment that Justice Kennedy’s writing is prone to errors such as his misspelling of de minimis (he wrote -us) during the previous term, followed by a subject–verb agreement error in the very next sentence. Justice Scalia was discreetly noncommittal about these points. I took it that he would not be drawn into any private criticism of a colleague—whatever he might say in dissent. He suggested that I call the Reporter of Decisions to get these errors cleaned up before they appeared in the United States Reports.
Lightening the conversation for a bit, Justice Scalia turned to my daughter and said: “You know, Caroline, I think breakfast is the most important meal of the day. It’s my favorite. What do you think?”
“I’ve never been big on breakfast,” she said.
“I just love breakfast. If I don’t have it, I’m unhappy for the rest of the day. How about you, Bryan?”
“Well, I know it’s supposed to be an important meal, but I often write early in the morning, and I tend to get so caught up with it that I end up missing breakfast.”
“Hmm. I can’t do without it.”
But Justice Scalia wasn’t finished with our conversation about language and writing. “Now, back to Fowler,” he said, resuming our earlier thread. “I give copies of Modern English Usage to my law clerks every year. You know, there’s a word for people like you and me—people who care a lot about words. What is it? It was in a magazine a few years ago. Do you know it?”
“Snoot,” I said.
“Yes, snoot! This man wrote an article about it.”
“Yes, in Harper’s.”
“Right! It’s the most amazing piece. My son Christopher is getting his Ph.D. in English at Wisconsin, and he put me onto it. Have you read it?”
“Yes, it’s by David Foster Wallace.”
“Right! That’s the guy. I love that piece. And it’s a perfect word: snoot.” He gestured with thumb and forefinger as the word left his lips, adding: “We didn’t really have a good word for it.”
“No, we didn’t.”
“Have you read this article, Caroline?”
“Yes, sir.” She smiled knowingly.
“You’re smiling,” Justice Scalia said.
I explained: “That Wallace essay is really a long review of my book, A Dictionary of Modern American Usage.”11
“What? Really? Ooooh. Your stock has just gone way up in my eyes.”
“Thank you. It was a very flattering piece, and I was honored that he wrote it. We’ve become friends since that was published.”
“My son Christopher would love to hear that.”
This seemed like a good time to bring up one matter I wanted to hash out with him. I asked whether he really disliked the word must in place of shall. He replied that shall has been used as an imperative for hundreds of years without any problem at all, and he asked for my objections.
There have been problems in statutes and contracts, I said. Lots of them. I cited some typical sentences in which shall has variously meant “is,” “is entitled to,” “will,” and “may.” I even cited the opinion by Justice Ginsburg in which she noted that shall has been held to have all these meanings.12 I told him that at least half the shalls in U.S. statutes don’t mean “is required to.” They’re not mandatory at all.
Justice Scalia seemed a little surprised.
I reminded him that the U.S. Supreme Court had issued new rules in 1996—and that I had been asked to help in that revision. He nodded, as if remembering. I said that I had understood that the Court wanted to keep shall but that I had tried to ensure that in every instance it meant “is required to.” Even so, I remarked, the Supreme Court Style Committee (which he served on) had allowed at least one instance of shall meaning “may” to persist in the rules. He was curious about that—and noticeably skeptical.
When I said that lawyers aren’t educable on the subject of shall, he agreed rather provisionally: “Well, you’re probably right. But must is a harsh word that doesn’t fall well on the ears.”
As our conversation went on, Justice Scalia began reeling off word issues that he thought I should touch on in my writings about English usage and legal usage, including such that (where such has no antecedent) for so that, and susceptible of vs. susceptible to (which I told him I’d written about). He explained to Caroline that susceptible of means “capable of” whereas susceptible to means “vulnerable to.”
I mentioned that he is more fastidious than most of his colleagues about hyphenating phrasal adjectives. He replied that many people who write stylebooks are unknowledgeable and don’t understand that well done shouldn’t be hyphenated because well is an adverb. I explained the -ly exception to the phrasal-adjective rule, positing that well done should in fact be hyphenated when it’s used before the noun (well-done steaks) because flat adverbs like well don’t immediately reveal themselves as adverbs, but -ly adverbs do. He didn’t like the distinction.
Motion for Rehearing
There was a pause in the conversation as we ate our breakfast. “You must be busy just about now, getting out opinions for the end of the term,” I said.
“Yes, though mostly now it’s dissents. I’m going straight to the office after we finish, to work on some dissents.”
We had nearly cleaned our plates, but I didn’t want this breakfast to come to an end.
“Justice Scalia . . . is there really no way I could persuade you to sit for an interview?”
“I don’t want to do an interview. I’m sorry. But I do want to stay in touch . . . Well . . . what kinds of questions would you ask?”
“What are the most common failings in briefs? Should judicial opinions be shorter? Why are transitions so important? What do you think of footnotes in different types of writing? How could law reviews be improved? Why do you begin so many sentences with and and but?”
Then I stumbled onto a breakthrough: “I think Chief Justice Roberts is going to do an interview.” I had been working on scheduling that interview as well.
“I’ll tell you what. If you get the Chief Justice to do an interview, I’ll do an interview.”
I said nothing. I just smiled and looked him in the eye.
“Ah, what the heck,” he said. “I’ll do an interview. You can set it up with Angela, my secretary.”
“Thank you, Justice Scalia.”
There was an awkward silence for about 30 seconds as Justice Scalia finished his eggs Benedict. When he was done, he asked Caroline more about her experience at Yale. He explained that he had stopped hiring law clerks from Yale because the school didn’t give reliable grades: 40% of the class received H, meaning “honors,” so it was hard to tell exactly what quality of clerks he was attracting, he said. I asked whether grades are the best predictor of success. He said they are.
Somehow we got around to the subject of judicial pay. I mentioned how horrible it is that clerks get paid more, right after their clerkships, than Justices themselves do. Not only that: according to Justice Scalia, they each get bonuses of $220,000 when accepting those jobs. That was 2006. It’s more now. But even then, the law clerks were making three times the salaries of their former bosses.
Justice Scalia called Congress “craven” when it comes to raising judicial salaries, or even their own salaries.
I told him that I’d been in Thailand when President Reagan appointed him to the Supreme Court—and that I’d never forget the announcement on Bangkok radio. He mentioned again that his parents had both died within a short period just before the appointment. “You know, you accomplish something really good, and you want to share it with your parents. That was really the only thing that cast a pall over that period in my life.”
Changing the subject, after a respectful pause, I ventured that there was one thing he might do to make his judicial opinions appreciably better. That piqued his attention. I suggested that although I’m generally against footnotes, he should start putting all citations in footnotes. I took him through the history of Spottswood Robinson (once his chief judge on the D.C. Circuit), John Minor Wisdom, and Alvin Rubin, and how they all footnoted citations so as to remove all the bibliographic gunk from their paragraphs.
“I might just be the only one on the Court crazy enough to try it.”
“My thought exactly,” I replied.
He gave a big belly-laugh.
“Well,” I said, “I mean that you might be the only one on the Court bold enough to try it.”
I told him that as the Court’s stylistic bellwether and the most influential stylist in modern legal writing, he could precipitate a huge stride forward in legal writing by relegating bibliographic data to footnotes. He said he’d experiment with it.
But then he backtracked, saying that readers sometimes get important information from those citations. I conceded the point but said that all the truly important information could be—even should be—worked into the text. I pressed a bit hard. He said he’d try it.
Changing the subject, Justice Scalia asked Caroline about her sister, Alexandra. Caroline said that Alexandra was in middle school at the Hockaday School in Dallas—where Caroline had also gone. I asked about his children. He had nine: five boys and four girls. He said it’s hard to raise that kind of family on professorial and then government salaries. He kiddingly suggested that my wife and I weren’t doing our job in keeping up with the 2.3-children average in American households, adding that he and his wife had more than made up for our slacking.
“Now I need to get to work on some dissents!” Justice Scalia said. He seemed suddenly restless. It was 11:30 a.m. Although we’d been talking for about 90 minutes, it hardly seemed like 20. Justice Scalia invited Caroline to be his guest at Supreme Court proceedings and to sit in one of his “box seats.” He gave me his home address. This, he said, would work better for correspondence because anthrax screening seemed to hold up all Court mail for up to a month. He also gave me his office phone number, saying: “Call Angela and set things up with her. I’ve enjoyed it. See you again soon.” The marshals whisked him away in the SUV.
The next day, I penned a handwritten note and enclosed a copy of David Foster Wallace’s Consider the Lobster:
Dear Justice Scalia,
Caroline and I thoroughly enjoyed our breakfast with you yesterday at the Four Seasons. What splendid conversation. Thank y
ou for taking the time.
I’ll be in touch soon about two points (interview, citations), but I hasten to send you the locus classicus for SNOOT, in its unexpurgated form (Harper’s had foreshortened it severely). See esp. pp. 69–70. Don’t take pp. 118–20 too seriously. That part is turtles all the way down.
How nice of you to invite Caroline to Supreme Court proceedings.
All best,
Bryan
Justice Scalia immediately made good on his invitation to Caroline. On Wednesday, June 28, he had her in the box seats reserved for the Justice’s guests. Opinions were announced from the bench that day. Two days later I wrote a letter thanking him for his generosity, adding: “She thoroughly enjoyed the proceedings, especially since the Texas redistricting case was on the calendar that day. That afternoon, she visited for 45 minutes in chambers with Justice Ginsburg. It’s been a heady summer for her.”
Planning the Interview
On July 1, Justice Scalia wrote me a two-page letter in which he agreed to be added to my “Rogues’ Gallery of videotaped judicial writers.” He went on, at some length, to say that I had persuaded him on neither the eradication of shall nor footnoted citations. He closed by thanking me for Consider the Lobster, adding: “I look forward to seeing you soon.”
In a fascinating footnote to his letter, he suggested something to replace my campaign for footnoted citations. If I was going to insist on pursuing “Jacobin novelties,” he proposed including parentheticals to indicate both great judges and judges who are “notoriously stupid and result-oriented.” He explained that when federal circuit-court opinions dealing with some areas of the law were cited, the names of certain authors—“I shrink from identifying them, but you know who they are”—flagged the opinion as almost certainly wrong. Because, of course, one man’s dummy may be another man’s genius, we would necessarily have to indicate our flattering or deprecatory intent—perhaps by appending “a ‘G’ or a ‘D’ to the name, thusly: ‘(Smith, J. [D]).’ ”
I refrained, in response, from pointing out that thusly is a barbarism, thus itself being an adverb. That would have involved pointing out that in the 1995 edition of my legal-usage book, I had taken him to task on this very point.13 Given the many things that we were going back and forth on, the “genius”/“dummy” designation, which I was sure he meant tongue in cheek, is something we never pursued further.
Nino and Me Page 3