Nino and Me

by Bryan A. Garner

  By August, we had arranged the date for the interview: October 2, 2006. That was the first day of the new Supreme Court term. The interview would take place in the Lawyers’ Lounge, just opposite the Marshal’s Office. In the run-up to the interview, I spoke mostly with the Public Information Office (PIO, as they say), run by Kathy Arberg—a real pro, and a friendly one at that.

  I remembered Ms. Arberg, but I wondered whether she remembered me: we had been mentioned alongside each other in the New York Times five years earlier, in July 2001. The Times had run a front-page article about my urging judges, especially appellate judges, to put their citations in footnotes—the very point that I had discussed with Justice Scalia during our breakfast. It was somehow controversial enough and interesting enough to make the front page in a Sunday edition—above the fold! When someone had noted that Supreme Court Justices don’t footnote their citations, I commented: “Although I have the highest respect for the Justices of the U.S. Supreme Court, most of their opinions cannot be held up as literary models by any means.” When the journalist responsible for this lead article, William Glaberson, had called the PIO to ask Ms. Arberg about the issue, she declined to comment. Here we were five years later, I thought.

  The interview was to take place at 2:00 p.m., and I was to arrive by 1:00. All I had was a video camera, two pages of questions (not disclosed in advance), and my briefcase with an Antonin Scalia bobblehead inside. I had brought it, together with a Sharpie pen, to ask Justice Scalia to autograph it for me.

  It turned out that the PIO official who met me wasn’t Kathy Arberg after all but instead her amiable chief deputy, Patricia McCabe (now Patricia Estrada). She took me into the Lawyers’ Lounge, showed me where to plug in my camera, and chatted with me as I got my equipment set up. She made sure that both Justice Scalia and I had side tables with water, that his chair would be comfortable, that the camera angles were acceptable (I put Chief Justice William Howard Taft’s portrait squarely in the shot’s background), and that signs outside the door warned passersby that an interview was in progress. She was perfectly genial, and though I was keyed up about interviewing Justice Scalia, she made me feel at ease. We had ten minutes before showtime.

  Pulling out a box from my briefcase, I said, “I brought along Justice Scalia’s bobblehead to ask him to sign it.”

  The Supreme Court bobbleheads had been commissioned by the Green Bag, a law journal edited by Professor Ross Davies of George Mason School of Law. The Scalia bobblehead is a pretty good likeness. It shows him wearing wire-rimmed glasses, standing in his judicial robes atop a copy of Webster’s Second New International Dictionary (1934). In his left hand is a red pencil plunged down into an enormous lemon, symbolizing his skewering of the Lemon test for assessing Establishment Clause violations. In his right hand is a copy of volume 483 of the United States Reports, which contains his memorable words about the negative commerce clause. A wolf stands at his side, recalling his statement that in draining the powers of the executive branch, a particular statute wasn’t a wolf in sheep’s clothing: “This wolf comes as a wolf.”14

  Patricia frowned a little. “What? What’s that?”

  “The Green Bag makes these,” I said. “Haven’t you seen them?” I lifted the box so she could have a better look.

  Without answering, she rushed from the room. Oh no, I thought. I’ve done something wrong. I put the bobblehead back into my briefcase. She stayed gone until 2:00 p.m., when she opened the door for Justice Scalia, who bounded in ahead of her: “Hello, Bryan! Where do you want me to sit?”

  The Interview

  “Right here, Justice Scalia.”

  “You’re by yourself? No camera crew?” He sat down.

  “All by myself. We’re just going to have an informal conversation on camera. It’ll be best if you simply look at me while we talk, not at the camera. The perfect answer is 30 to 90 seconds. But please be expansive whenever you like.”

  “Okay. I can do that.”

  “I’ll turn the camera on, if you’re ready.”

  The interview was scheduled to last 45 minutes, but he seemed to enjoy it so much that he extended it twice—which I welcomed, naturally. It was a meaty interview with a lot of thoughtful discussion about legal advocacy.15 We also had some lighthearted exchanges. At one point, I asked him whether current opinions of the Supreme Court could be cut in half with a benefit. “Some . . . Some,” he replied, nodding. “You don’t want me to name names, do you?” We both laughed.

  At one point I got off a zinger he’d never heard. He was complaining about legalese such as nexus and instant case and informs our consideration. Then he mentioned the “terribly trite” Marbury v. Madison and its progeny. He hated “progeny.”

  I deadpanned, “What do you think about the law-review author who wrote about ‘Roe v. Wade and its progeny’?” It took him a second, but then he chuckled without further comment.

  We spent some time talking about David Foster Wallace and his term snoot. He had remembered our first discussion about the term when we’d met for breakfast, and he began to elaborate. “Snoots are those who are nitpickers for the mot juste, for using a word precisely the way it should be used—not dulling it by misuse. I’m a snoot, I confess.” He explained that he acquired this trait from his father and asked, “Can I tell a story?” He wanted to repeat for the camera the story he’d told over breakfast.

  “Absolutely,” I answered. I was delighted that the interview was going so well. Justice Scalia was settling in and seemed to be enjoying it, too.

  “My father was a linguist. He taught Romance languages at Brooklyn College. He used to read my opinions when I was on the court of appeals and correct my grammar,” he said with a chuckle.

  “The D.C. Circuit used to conclude all of its opinions with a formula: ‘For the foregoing reasons it is hereby ORDERED’—solid caps—‘that the judgment of the District Court is affirmed’ or ‘is reversed.’ This used to drive my father up the wall. He would write to me: ‘Son, you cannot order that ‘it is affirmed.’ You have to use the subjunctive: ‘It is hereby ordered that it be affirmed.’ So I ended up being the only judge on the D.C. Circuit who wrote: ‘It is hereby ORDERED that the judgment of the District Court be affirmed.’ But I don’t think that’s pedantry; I think that is snoot.”

  “Are there any other snoots on the Court?” I asked.

  “I think the biggest snoot on the Court used to be Harry Blackmun, and Harry and I joined forces to try to police the Court’s opinions.” He laughed and continued, “On the current Court, I think probably David Souter is a snoot. Ruth [Bader Ginsburg] is too polite to be a snoot, but she cares a lot about proper use of the mother tongue.”

  “Do you think it’d be a good thing if more lawyers became snoots?”

  “Oh, absolutely. I cannot imagine why any lawyer would not be a snoot. It’s the tools of your trade, man! It’s what you work with. Why do you want to abuse them?”

  Later in the interview, I asked him about book authorship. I was thinking of his short book A Matter of Interpretation. “When you go about writing an article or a book . . . I’ll let you take a sip first.” He was on film, after all, and I was asking a question right as he was taking a drink of water.

  “I can sip water and listen at the same time, contrary to what Lyndon Johnson thought.” We laughed at the allusion to Johnson’s famously saying that someone was so dumb he couldn’t walk and chew gum at the same time.

  “How would you describe your writing process? How do you go about writing an article or a book? You get a germ of an idea?”

  “You’ve got to outline it first.”

  “Do you?”

  “Yeah, I always do.”

  “Does anything happen before you outline?”

  “Well, I think about it a lot,” he said. “There has to be a lengthy germination process. You don’t just sit down cold and say, ‘I’m going to do this.’ You think about it. You think about it when you’re driving home, when you’re ex
ercising at the gym; ideas go through your head. Then, when you think you have all of the ideas, all of the points you want to make, then you sit down and organize them. You say, what’s the proper approach, what order to put them in, and so forth. And then just sit down and write it. That’s the hardest part. Sit down and write.”

  We were nearing the end of our time on film. I said, “I take it you really enjoy what you do.”

  “Ahh. Love it. I can’t imagine anything I would enjoy more.” As I began to thank him for his time, he said, “I enjoyed being here, and I thank you for your . . . I think you’re something of a snoot yourself, and that makes me happy.”

  Precisely 63 minutes after we began, I thanked him and concluded the filming. I felt exhilarated.

  “That was great!” I said.

  “You know, I learned some things from this interview—just from listening to your questions. They made me think about things I hadn’t stopped to consider before. I enjoyed that.”

  “Well, me too. I think that’s the finest interview I’ve ever conducted. You’re an astonishing repository of knowledge about rhetoric. I learned things from listening to your answers.” I was putting my camera and tripod back into their pouches.

  “I understand that you have some kind of doll. Is that true?”

  “It’s your bobblehead. Haven’t you seen it?”

  “Yes, I’ve seen it. I have one.”

  “I was hoping you’d autograph mine.”

  He hesitated and looked doubtful. “If I sign this, am I going to see it on eBay? I’ve signed a lot of things that end up going for sale on eBay, and I don’t do that anymore. I resent it.”

  “Justice Scalia, believe me. I’d never let go of this bobblehead. It’s mine forever, and I’ll never forget this day.”

  He pulled a fountain pen from his pocket.

  “This Sharpie will be much better. Let’s use it instead.” He signed with a big flourish—a beautiful signature. “Thank you, Justice Scalia. I collect Supreme Court memorabilia, and I’ll treasure this.” I also had him sign his book A Matter of Interpretation.

  Indignantly, he said, “You know, I don’t make a penny off this book!”

  “What? Really?”

  “Not a penny. Princeton University Press continues selling it, and they’re making a good deal of money. I don’t see anything from it.”

  “How can that be?”

  “They paid me a flat fee—a nominal fee. And that was it. No royalties.”

  “That’s a shame. Royalties are great, particularly with evergreen books—books that will sell year after year.”

  “Especially Black’s Law Dictionary. It’s such a classic.”

  “Thank you. The publisher allowed me to remake that book from scratch.”

  “I’ll bet that was a big project.”

  “Humongous. It took many years for each of the two unabridged editions I’ve done. I won’t say ‘edited,’ because I’ve really written them—with lots of good help.”

  Patricia McCabe was standing nearby, waiting patiently for us. I suggested, “You ought to write books the way Chief Justice Rehnquist did. You’re the best writer on the Court, and that’s a way to supplement your income without limit, isn’t it?”

  “Yes. Bill Rehnquist did it, but I don’t think he made a lot of money from it. What did you think of his books?” he asked.

  “Not much. I think they’re supposed to be scholarly, but they’re not; and I think they’re supposed to appeal to a popular audience, but they don’t.”

  He nodded slowly as if in thought, but then said dismissively, “Anyway, I don’t have the energy. As I was saying during the interview, writing is really difficult for me.”

  “Well, you’re an extraordinary stylist. Justice Scalia, it’s been a great honor having this time with you. Thank you for the interview. I’ll send you DVDs as soon as they’re ready.”

  “I won’t watch them,” he said bluntly.

  “Maybe your law clerks will. Thank you again.” We shook hands.

  “Goodbye, Bryan.” He smiled and walked away decisively with Patricia. That was that.

  Moments later, Patricia came back in with Kathy Arberg. “I hear you had a tremendous time with the Justice!” said Kathy.

  “Yes, indeed.” We chatted a few minutes, and I told her that I was hoping for interviews with the other eight Justices as well.

  * * *

  9. The full events of that evening are recorded in the book Quack This Way: David Foster Wallace and Bryan A. Garner Talk Language and Writing (2013).

  10. Rapanos v. United States, 547 U.S. 715, 754 (2006).

  11. A very slightly different account is that I said, “Sir, that essay is a review of my book.” Alex Carp, “Writing with Antonin Scalia, Grammar Nerd,” The New Yorker, 16 July 2012, http://www.newyorker.com/news/news-desk/writing-with-antonin-scalia-grammar-nerd.

  12. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 n.9 (1995).

  13. Bryan A. Garner, A Dictionary of Modern Legal Usage 881–82 (2d ed. 1995).

  14. Morrison v. Olson, 487 U.S. 654, 699 (1988).

  15. All the interviews of Supreme Court Justices can be seen at http://www.lawprose.org/bryan-garner/garners-interviews/supreme-court-interviews/.

  3

  Making Your Case: Part I

  (2006–2008)

  Settled into my American Airlines seat after taping the interview, I felt euphoric. I’d done the interview of my life. More important, I’d made a new friend. After the plane had taxied to the runway, I drifted into a semisleep, as I often do in the moments before a plane takes off. That’s when I get some of my best ideas.

  Suddenly it hit me: Justice Scalia and I should write a book together. Our thoughts about rhetoric aligned almost perfectly, and he seemed so much more insightful on the subject than anyone else I had ever met. His impromptu thoughts were just superb. Imagine being able to capture all that in a book. It would be called The Art of Persuading Judges. This book on legal rhetoric would be broader than The Winning Brief. It would be a book, I thought, the likes of which only the two of us could produce. He seemed so interested in my books that, in retrospect, I believed he might even have been hinting at something after the interview. Or maybe not. But what the heck, I thought I should try. So I drafted this letter on the airplane—and elaborated it the next morning at the office before leaving on another trip:

  Dear Justice Scalia:

  That was a fabulous interview this afternoon. Thank you. I’ll send you a DVD soon (when I get a little time in Dallas—I’m off to Atlanta now).

  Afterward, when you were signing your books for me, I was struck by what you said about the 1997 Princeton book: you received a small flat fee for that work, and no royalties. That’s a pity.

  So I’ve had a brainstorm. You may know that I have some 18 books in print. I derive a third of my income each year from book royalties. I have a good sense of what books will sell.

  I suggest that we write a book together: The Art of Persuasion, or perhaps Persuading Judges. For some months now, I’ve been working on a plain-English update of Aristotle’s Rhetoric. I’ll still do that someday, but why don’t you and I write a book elaborating the major propositions about persuasion? I’ve written around this subject a good deal, and I have a huge library on the subject. All that remains is to distill the major points and develop essay-like treatments of them for a modern audience.

  I’m pretty sure that I could obtain a favorable royalty rate. I’d propose to divide advances and royalties 66% for you and 34% for me.

  Please tell me whether you’re interested. It would be a delight to work together, I think, and I can tell you that royalties are wonderful: one derives income for work done many years before, and over time the sums become significant.

  It would be great to strengthen and deepen our friendship.

  Sincerely,

  Bryan A. Garner

  This letter was self-testing: could I persuade a judge—in this instance
to collaborate on a book about persuading judges? Of course, it was an appeal unlike what any advocate could make to an adjudicator: I praised him, then appealed to his financial self-interest, then appealed to prospective friendship.

  The next morning in my office, I had it typed up and edited by my then-staff of two lawyers and two paralegals, who have always been a critical part of my team. Jeff Newman, one of my lawyers, seemed quizzical and doubtful about the idea; Tiger Jackson, my other lawyer, said it sounded like a great project. After four drafts, it was ready. I sent it FedEx to Justice Scalia’s house.

  The following morning, my father called to ask about the interview. By this time I was in Atlanta.

  “How’d it go, Bryan?”

  “Dad, it was just great. You wouldn’t believe it. He extended the interview twice, and we got on so well.”

  “That’s wonderful to hear.”

  “His ideas about advocacy are so profound—and they align more with my own than anyone I’ve ever met, even though he seems not to know much about my work.”

  “How exciting.”

  “Yes, and you’ll never believe what’s happening just about now. I have a letter being delivered to the Scalia house—a letter inviting him to become a coauthor with me.”

  “What?”

  “We hit it off so well personally. The interview was a dream. It was amazing, Dad. So I’ve invited him to write a book with me about legal rhetoric.”

  “What?! That’s absurd.”

  “You think so?” I suddenly felt chastened.

  “The sheer chutzpah of it. You should be embarrassed. You have an interview with the man, you get excited, and you think he’s going to coauthor a book with you?”