“Well, I think he might, Dad.” My heart sank.
“You’ve really outdone yourself here. I’d try to prevent it from being delivered if I were you.”
My embarrassment deepened. What had I done? Why hadn’t I seen this before? It was clear, though: my father was right. “Let me call FedEx right now,” I said hastily. “I’ll see whether I can get the delivery canceled. Thanks, Dad. I love you.”
“I love you, too, Bryan. See if you can cancel that delivery.”
I immediately called my assistant, Brandy, to see whether she could stop the delivery. She called FedEx and soon reported back that the piece had already been delivered just 30 minutes earlier. So be it, I thought. At least the embarrassment would be only between Justice Scalia and me. I tried to forget about it and go on about my day.
A busy two weeks followed. I was teaching three to four seminars per week—all of them out of state. Then, nearly three weeks later, I received the most extraordinary letter, dated October 18, 2006. It was from Justice Scalia, and it said that he had mislaid my letter and so was responding without having it before him. He had been “chewing over” my proposal and had concluded that he should “gratefully accept.”
He wanted it to be a truly joint enterprise and stood ready to commit to the time this might take. He suggested that every section should be jointly authored—so that no sections would be individually signed. Then he signed off with a shall and (for the first time) with his nickname: “I shall await further word. Best regards. Sincerely, Nino.”
I could hardly believe my eyes.
I would later learn, from Mrs. Scalia, that their son Christopher—the newly minted Ph.D. in English whom Justice Scalia had mentioned at our breakfast meeting—had been staying at the house when my letter arrived. When his father opened the letter and showed Christopher, the son was reportedly enthusiastic and encouraged his father to accept. He was a fan of David Foster Wallace, who less than a year before had published Consider the Lobster, the book containing “Authority and American Usage,” the long encomium to my Dictionary of Modern American Usage. True serendipity.
A Meeting of the Minds
Having received the acceptance letter, I called Justice Scalia at his office to set up dinner the next time I’d be in Washington: Sunday, November 4, with an in-chambers planning session the day after. The phone call was warm but businesslike: we agreed that we’d need to settle on a plan of attack. For dinner the night before, we confirmed that he’d make a reservation for 6:00 p.m. at his favorite Italian restaurant, Tosca.
When the day came, I went to the restaurant at the appointed time, but he didn’t show up. When I checked with the maitre d’, he said he had no reservation for Scalia. So I ate alone. I figured there must have been a mix-up—and though disappointed, I didn’t feel particularly slighted because in the past year I’d done the same thing to someone else. It was the mortifying by-product of spending so many nights per year on the road and of having three people responsible for updating my calendar. So I was pretty understanding.
The next morning I called to ensure that our 10 o’clock meeting was still on, and Angela Frank, his omnicompetent secretary, said our dinner must have slipped his mind because she hadn’t been told about it. She said to come on over to the Marshal’s Office.
It was with a sense of high purpose that I entered the Supreme Court building on November 5. I went through the north entrance, on Maryland Street. A marshal stopped me as I was walking from the front plaza toward that entrance. “What’s your business?”
“I’m here to meet with Justice Scalia.”
“Your name?”
“Bryan Garner.”
He said something into the line dangling from his earwig. Then to me: “Go ahead.”
I went through the metal-detector screening near the door. One of the police officers said, “You’re here to meet with Justice Scalia?”
“Yes.”
“Go ahead. Have a good day.”
I went to the Marshal’s Office, where the reception room is long and narrow with lots of fine millwork. All the furniture and walls matched, and they seemed to be finely crafted. I would later learn that the Supreme Court has its own mill in the basement, with carpenters who perpetually have cabinetry projects.
“Hello,” I said to the woman sitting closest to the counter. There were four workstations there, and all four were occupied. Four faces looked up at me. “My name is Bryan Garner. I’m here to see Justice Scalia.” I smiled, and two of them smiled back.
But they were all business. “One moment.” One of the marshals called through to say I was there. Then to me: “Someone will be here in a moment to escort you.”
There were two chairs for guests in the Marshal’s Office, opposite which were the individual photographs of the nine Justices. I took a chair and studied them for what they might show. Chief Justice John Roberts had a boyish grin; Justice John Paul Stevens an avuncular look; Justice Scalia a subdued but happy smile; Justice Samuel Alito a somber look that bordered on sullen; Justice Ruth Bader Ginsburg a serene sort of smile so slight that it resembled the Mona Lisa; Justice David Souter a look of humorless earnestness; Justice Clarence Thomas a good smile with the upper lip slightly curled; Justice Stephen Breyer an air of patrician erudition; and Justice Anthony Kennedy, lips slightly parted as if expressing wonderment. One unexpected thing was the way in which they were hung: rather too high and not quite even. This was a do-it-yourself job of hanging art.
“Mr. Garner, I’m Angela.” I hadn’t even seen her walk in. She was about five feet four inches tall, brunette, with a broad smile. I liked her instantly.
“Oh, good to meet you. Please do call me Bryan.”
“All right. Bryan it is. Please come this way.”
She used a code to get us through a locked passageway into the secured parts of the Supreme Court building. We walked down two long halls past doors with signs on them reading “Justice O’Connor” and “Justice Stevens,” finally coming to an office designated “Justice Scalia.”
She gave three rapid knocks and then immediately opened the door. “Justice, Mr. Garner is here to see you.”
The spacious office itself was impressive: federal-style maple woodwork throughout, floor to ceiling, with neoclassical designs around the built-in bookshelves and drawers; a handsome Chippendale desk and side chairs; a black-marble fireplace with two silver plates that looked as if they’d been inscribed as mementos for him; an old, seemingly 18th-century oil painting of George Washington; two 19th-century oil paintings of Justices, one of whom I recognized as Stephen J. Field; the head of a 12-point buck mounted high on the wall; a complete set of the United States Reports; a duck decoy and a lap desk atop his coffee table, which sat on a Persian rug; and bronze busts of Abraham Lincoln and Theodore Roosevelt, the latter of which I noticed had recently been presented to Justice Scalia by the Union League Club as recipient of the “Theodore Roosevelt American Experience Award.”
He swung around in his swivel chair and rose with an outstretched hand: “Bryan! How good to see you. I’m so sorry about last night. Forgot all about it. Can I make it up with dinner tonight?”
“Of course! That’d be great. You know, it’s so great to be here. This is an exciting project. And happy Guy Fawkes Day, by the way.”
“It is Guy Fawkes Day, isn’t it? Tried to blow up Parliament.”
Angela said, “Would you like Fernando to bring you some coffee, Justice?”
“No, I think I’d like a root beer. Bryan, do you like root beer?”
“I do, but I’d like a Diet Coke even better if you have one of those.”
“We do indeed,” Justice Scalia said. “Fernando! Fernando! Is he there, Angela?”
We settled into the sitting area near his desk, he on a Chippendale chair and I on his leather couch. A Filipino man of slight build appeared at the door, nodded at me, and then focused intently on Justice Scalia. “Fernando, please bring me a root beer and Mr. Garner here a Die
t Coke.” As Fernando walked out, Justice Scalia said, “Fernando is my tipstaff. That’s what I’ve decided to call him. For years each Justice has had a ‘runner,’ but ‘runner’ just doesn’t sound good. In England, a judge’s factotum is called a ‘tipstaff.’ So Fernando is my tipstaff.”
“Great word. I didn’t know it.”
“Yes. It’s a great word. So we’re going to write a book! I’m looking forward to it. You know, I’ve never really written a book. A Matter of Interpretation was really just an essay with other essays tacked onto it so it looked book-size. But this will be a real book.” He exuded enthusiasm.
“Yes.”
“Tell me, you’ve written lots of books. How do you go about it?”
“Well, I’ve gotten better at it over the years. It’s about as you said last month in our interview. We’ll do the outline first.”
“Right.”
“I’m convinced that the best way to approach a didactic book like ours is to work out the table of contents first, but to do the table of contents in complete sentences only.”
“What do you mean?”
“We’ll figure out the propositions and then write essays in support of them. If you look at my book The Winning Brief . . .”
“I like that book. One of my lawyer sons showed me that one.”
“Oh good. The Winning Brief has 100 propositions about brief-writing. Some are small points, and some are hugely important. But it’s divided up that way, point by point—each with a full-sentence heading.”
“I don’t want our book to be The Winning Brief Lite!” Justice Scalia said. “You’ve written so well and so fully about brief-writing.”
“Thank you,” I said. “But I don’t think that’s a danger. You and I are going to write more about argumentative strategy—the way Aristotle did. But you know that Aristotle’s Rhetoric is an architectural mess. The organization makes no sense at all. We don’t want that.”
“I agree,” he said.
“That means that we’ll need to work out the main propositions first, order them appropriately, and then write in support of them later.”
Fernando came in with a tray: two glasses of ice, a bottle of root beer, and a can of Diet Coke. He set the drinks down carefully beside us and slipped noiselessly out of the room.
I continued: “What I propose to do in this meeting is to agree on the main lines of the book. I’ve worked out a preliminary outline, and I was hoping perhaps this might prompt you to think of things I’ve missed. Or perhaps you’ll want to reorganize the points I have. Or maybe modify them entirely.”
After handing him my three-page draft table of contents, I waited for a reaction. It came about 60 seconds later. Justice Scalia said: “You’ve missed the starting point. Number one must be to ensure that the court has jurisdiction.”
“Ah.”
“I can’t tell you how many litigants get into trouble because their lawyers don’t verify that the court has jurisdiction. It happens in the Seventh Circuit all the time. Point number one should be jurisdiction!”
“How would you like to word it?” I asked.
“Be sure that the court has jurisdiction.”
“That’s good. I’ve put all the blackletter section headings in the imperative mood, as injunctions, and that fits perfectly.”
“I’m glad,” he said with a purposeful nod.
“One fundamental point we need to deal with,” I said, “is the purpose of the book. We’re not confining ourselves merely to appellate practice. Right?”
“Right. And certainly not just United States Supreme Court practice. That would limit the book too much. We need a bigger audience.”
“Yes, so we include trial practice. But shouldn’t we also be considering arbitral panels and other types of forums like that?”
“Wait. You use the plural forums?” he asked me.
“Yes, I think the Latinate plural I is pretentious, don’t you?” I said.
“I don’t know. It’s a Latin word. You know I was a good student in Latin.”
“Great training, isn’t it?” I said.
“No better way to improve your English than to learn Latin. It’s a shame it’s dropped out of the schools. Did you have Latin?” he asked me.
“Two years in college. Four years of French but only two of Latin.”
“I had seven or eight years of Latin, and I use it all the time,” he said.
“I know you once used the phrase hapax legomenon, but that’s Greek.”
“I used that phrase? Remind me.”
“It means a word or phrase that appears only once within a language or only once within a single writer’s corpus of work. You used it in your first term on the Court—in reference to the adjective material. You wrote, ‘The term material . . . is no hapax legomenon in our jurisprudence.’ ”
“I think you’re wrong about the meaning. I think it’s only once within the language as a whole,” said Justice Scalia. “Is that really what I wrote?”
“I’m pretty sure. Let’s look it up.”
He did this often, calling my hand over a word’s precise meaning. So did I, for that matter. We were kindred spirits when it came to words. We were both snoots.
“You have a Webster’s Second right there,” I said, pointing to the dictionary stand some ten feet from the chair behind his desk. “Let’s have a look.” I went over to his dictionary and read: “hapax legomenon. Said or used but once, as a rare word, verbal form, etc., evidenced by a single citation.”
“Aha! A single citation. It doesn’t say a single author.” He was on his computer.
“You know,” I said, “it’s strange Webster’s Second defines the phrase as if it’s adjectival. Most linguists treat it as a noun. In my book on usage, I define it as a noun: ‘a word or phrase that is used . . . ,’ not the past participial ‘said or used,’ as if the term were always used as an adjective.”
“You define the term?” he said.
“Yes, in my usage book.”
“Let’s see.” He jumped up eagerly, not as if to challenge me but more to indulge his curiosity. He grabbed the book from behind his monitor and started flipping through the pages. Suddenly his lower lip jutted out. “Buh-buh-buh-buh-buh.” These rapid-fire syllables were a habit of his that I would soon become accustomed to whenever he was thumbing through a book to find a particular page. “You give two meanings: ‘1. A word or phrase found only once in the written record of a language. 2. A word or phrase found only once in the work of a particular author.’ You have support for that?”
“Sure. The Oxford English Dictionary defines it in more or less that way. It also defines the phrase as a noun. I think Webster’s Second gets that wrong.”
“You’re undercutting Webster’s Second?”
“Are you kidding? I love that dictionary. It was my booster seat when I was a kid—whenever I visited my grandfather, the judge.”
“Your grandfather was a judge?”
“Justice Meade F. Griffin, on the Supreme Court of Texas for almost 20 years—from 1949 to 1968. When I was four or five, he had me sit on Webster’s Second.”
“That’s something.”
“I now own about 15 copies of it, and I keep them placed conveniently around the house and in the office for my employees—for emergency lookups, not booster seats. I have only about 6 copies of Webster’s Third.”
“Ooooh,” he grumbled, shivering and shaking his head. “Webster’s Third is an awful book.”
“Well, it’s actually a good piece of lexicography. It’s just that people need to know how to use it. It’s too bad that Philip Gove, the editor, didn’t include enough usage labels to warn people against using certain terms.”
“Like misusing infer for imply.”
“Right. And ain’t. Gove actually took the position that educated Americans routinely use the word ain’t. You ought to see what I say about that.”
“Your usage book? You’ve written about this?”
“
Yes.”
“Let me see. Buh-buh-buh-buh-buh. Page 31: ‘ain’t. Is this word used orally in most parts of the country by cultivated speakers? In 1961, Webster’s Third said it was, provoking a firestorm of protests from journalists and academics.’ Understandably so. I remember that. ‘Webster’s Third’s assessment was quite a change from that of Webster’s Second (1934), which had given it a tag: “Dialectal or Illiterate.” The editor of Webster’s Third, Philip Gove’—by golly, you name him right here, heh, heh, heh—‘explained the change by conceding that he had no large files of empirical evidence: “Knowledge of some kind of language behavior comes through contact with its observers and is not always documented because there seems to be no reason to collect additional evidence.” If that’s the method, then one can confidently say that Webster’s Third’s treatment was flawed in its incompleteness.’ Wow. You really called him out.”
“Read the next paragraph,” I said.
“ ‘In 1962, the year after Webster’s Third was published, an apt cartoon appeared in the New Yorker. It’s hilarious. A man is standing in the reception area of G. & C. Merriam Co., Dictionary Division, as the receptionist says to him, “Sorry, Dr. Gove ain’t in.”’
“Ha! Ha!” Justice Scalia bellowed with delight. “Boy, you really skewered him. Did he live to see that?”
“No. I’m afraid he died a few years after Webster’s Third was published. Webster’s Third isn’t a bad book: it just requires discernment. Still, for traditional terminology—rhetorical and legal terminology—I do prefer Webster’s Second.”
“My father introduced me to Webster’s Second when I was a young man,” he said. “I’ve liked it ever since. But let’s get back to the point! Where were we?”
“Hapax legomenon, and whether it can refer to a corpus smaller than the entire language. If you think about it, your own use of the phrase in your 1988 opinion used a corpus smaller than the entire language: ‘Material is no hapax legomenon in our jurisprudence.’ The corpus you’re referring to was just the United States Reports—not the whole English language.”
Nino and Me Page 5