Nino and Me

by Bryan A. Garner

  I went back to their porch, where he was puffing on a cigarette. “Hello, Bryan! I had to have a cigarette. Maureen hates it when I do this, so I sneak out here on the porch.”

  “I didn’t realize you’re a smoker.”

  “I don’t do it much. Sometimes one a day. They don’t like it when I do it at the Court, either. But . . . how was the trip over here? Did you find us all right?”

  “No problem.”

  “Say, let’s go in and I’ll mix some drinks.”

  As we alighted at the kitchen door, Mrs. Scalia said, “Nino, I know what you were doing back there!”

  Without acknowledging that comment, he walked into the small bar area beside the kitchen, smiling and resting his hands on the counter, making a kind of shrug.

  “I’m going to mix some drinks, dear. Would you like one?”

  “Not just yet. Still cooking.”

  Then he looked at me. “Campari and soda?”

  “Yes, thank you.”

  Justice Scalia reached beneath the counter and put the Campari on the bar. “Wait a second. Maureen, where’s the soda? I thought I bought some soda!” he said emphatically.

  “You did, Nino,” Mrs. Scalia said in a low voice. “It’s in the refrigerator. Right where you put it.”

  “Oh.”

  After retrieving the soda, and washing his hands, he scooped some ice into our glasses. “Bryan, there’s something I’ve been meaning to tell you. I don’t think we can continue working together . . .”

  He paused, and my heart sank.

  “. . . if you keep calling me ‘Justice Scalia.’ Please call me ‘Nino.’ I’m Nino.”

  “Okay, Nino. Thank you.”

  He handed me my drink and said, “Here’s to our book.” As we toasted, I knew we were marking a milestone in our relationship. He was Nino to me now.

  Mrs. Scalia turned from the stove and said, “You know, he’s very excited about it. He’s enjoying your various writing projects.”

  “So am I, believe me. I’ve never had any experience like it.”

  “You know,” Justice Scalia said, “neither have I. Well, that’s not quite true. I did some work as an editor on the Harvard Law Review—some work with a classmate, David Currie, who’s now a professor at Chicago. What we’re doing reminds me of those days working with David. I really like this. It makes me happy.”

  “Me, too.”

  At dinner, Justice Scalia said a brief prayer. We engaged in a kind of convivial conversation while getting to know one another, with the full understanding that an alliance had already been formed.

  “Caroline, are you old enough to drink wine?”

  She stole a glance at me and said, “I’m only 20.”

  “That’s true,” I said, “but under Texas law a parent is allowed to serve a child wine even in a restaurant—as long as the restaurant staffers don’t do it. I don’t know about Virginia law, but I’ll bet the rule is the same here.”

  “Really?” said Justice Scalia.

  “Since she was 18, I’ve usually poured Caroline half a glass of wine.”

  “Well, then. I guess we can. Caroline, would you like some wine?”

  “Yes, sir.” He poured meticulously.

  The “macaroni”—in this instance, spaghettini—was as promised: as superb as any I’d ever had, with a tomato-based meat sauce. Mrs. Scalia beamed as all three of us expressed our admiration for her cooking.

  “Did you learn from Nino’s mother?” I asked.

  “Some, but mostly from cookbooks.”

  “And boy, did she master it,” he added. “She knew how much I like Italian cooking, and she’s as good as anyone I’ve known. Not bad for an Irish girl.” Mrs. Scalia blushed.

  Late in the evening, Justice Scalia couldn’t help shifting the conversation back to the book: “Bryan, I’ve been thinking we should use shaded boxes throughout the text.”

  “Shaded boxes?”

  “Yeah. You’ve been coming up with good quotations from noted authors. We’re not going to be able to use all of them. I think we should put the ones we’re not using into shaded boxes and have the text wrap around.”

  I was skeptical. “I’ve never seen such a thing.”

  “Well, I have, and I think it works really well. It adds a whole new dimension to the page. Just try it with a couple of sections, and see what you think.”

  At dinner’s end, about 9:30, Justice Scalia said, “Let me drive you back to your hotel!”

  “No, of course not. We’ll just call a cab.”

  “Nonsense. I want to drive you back. No sense in paying a cab fare. I’ll drive you back.”

  He was generous to take us back. We had to drop off Caroline first, at her apartment in Georgetown, and then me at the Mayflower, and then he would have to make his way all the way back home—a round trip of about 30 miles in 45 minutes.

  In the garage, we climbed into a 1990s-vintage BMW with a stick shift. He said he loved driving standard-transmission cars. “You feel more connected to the engine!” A fast driver, he was impatient with less-efficient drivers sharing the road. And he was aggressive in traffic, so the ride had its moments of excitement.

  The next day, after a second day of teaching in D.C., I was at Reagan National Airport when an e-mail came through from Justice Scalia. He sent me what he thought of as his final installment on oral argument. He had scanned a formally prepared cover letter in which he said he was sending me all the remainder of his materials on oral argument. He said that if he hadn’t written on a given point, that meant (1) he didn’t agree with it, (2) he didn’t understand it, (3) he thought the point had been dealt with elsewhere, or (4) he simply had nothing to say. He hastened to add how much he’d enjoyed dinner with Caroline and me the night before.

  This letter caused me to jettison some sections on oral argument, combine others, and write on the remaining ones that had no text from him, with the hope that he’d see merit in a section and add to it.

  The end of the 2006–2007 Supreme Court term was nearing, and Justice Scalia would soon be heading to Innsbruck to teach in a summer-school program. By the end of June, before he packed up for Europe, I sent him some sample pages incorporating his idea of using shaded boxes. We both liked the way they looked, and I came to think of this feature as one of the most attractive elements in the typography and layout of the book. An example appears on the next page.

  By this time, we had agreed to a new title—one that Justice Scalia devised: Making Your Case. My original title, The Art of Persuading Judges, became the subtitle.

  Briefing

  The Writing Process

  33. Spend plenty of time simply “getting” your arguments.

  Good briefing is the product of lengthy thought. The raw material for that deliberation is the facts of your case as you contend them to be or as they have already been conceded or determined. Each one of those facts may be the basis for a legal claim or defense, or the means of establishing or defeating the relevance of governing cases. Review them in detail and prepare a timeline—a chronological listing—of the pertinent ones that must be included in your Statement of Facts.

  “[T]here can be said to be three kinds of author. Firstly, there are those who write without thinking. They write from memory, from reminiscence, or even directly from other people’s books. This class is the most numerous. Secondly, there are those who think while writing. They think in order to write. Very common. Thirdly, there are those who have thought before they started writing. They write simply because they have thought. Rare.”

  —Arthur Schopenhauer

  Don’t start writing until you’ve turned the case over in your mind for days—thinking about it while you’re driving to work, discussing it with other lawyers in your firm, even talking it over with friends and family. New ideas may occur to you as you read the leading cases and scholarly authorities. And think not just about your affirmative case but also about the case you can expect from your adversary and the responses y
ou have available.

  Working in Chambers

  Our days together composing and editing were exhausting, often 9–4 o’clock or 1–5, depending on what my D.C. schedule allowed. That is, every one of these working days was scheduled around a teaching engagement I’d have with a D.C.-area law firm or government agency. I’d just schedule an extra day for writing and editing with him. “Who are you teaching on this trip?” the Justice would often ask with a bit of exuberant admiration. The answer might be the Department of Justice, the FDA, EPA, HHS, HUD, the FCC, the FTC, the PTO, or any one of a few dozen D.C. law firms. He’d always respond as if hopeful and marveling at the answer.

  “You’re teaching them to write better?”

  “You bet I am.”

  “That should help us—the judges!”

  By the time Making Your Case was completed, we had worked together in his chambers more than 100 hours. Sometimes we’d work on Saturdays or Sundays, but more often on weekdays. Fernando would prepare a trestle table with a white tablecloth, two chairs side by side, plenty of pens and pencils, a pair of scissors, and a roll of tape. Dictionaries were within easy reach.

  Meanwhile, Justice Scalia would also have an extra chair for me beside his own at his keyboard. We’d spend most of our time at the trestle table, going page by page examining passages I’d selected in advance for his further consideration. We’d often read passages back and forth to each other and handwrite in a sentence here and there. We wanted the cadence of each passage—as well as its substance—to be just right. If an addition grew to the length of a paragraph, he’d jump up from the table, walk over to his computer, and begin composing. Typically I’d go to the chair beside him, behind his desk, and watch as the words he was typing appeared on the screen. I’d stay silent until he had reached a stopping point. Then I’d mention any typos that needed fixing, and he’d make the corrections. I’d often suggest another sentence or two. He would type them as I dictated. I’d finish, and then he’d modify one or two of my word choices. Often we’d have our little word-battles over those choices.

  Then he’d print two copies of our new two-paragraph insert, and we’d independently edit in silence for three minutes or so, after which we’d sit down at his computer while he entered his edits first, then mine. We’d usually repeat this process, printing out two more copies, reading it again, sometimes aloud to each other. Or there would be more editorial adjustments. Those made, he’d print out just one copy for me to insert into the master version of the manuscript (always labeled “BAG Master,” from my initials, on the front cover) using scissors and tape. Upon my return to Dallas, I’d have the insertions retyped into the master.

  As we’d work through the text, I’d carefully show him all the new passages I had composed to fill out sections that had seemed underdeveloped. Half he would approve verbatim. But then he’d stop on one, and our exchange—it became a ritualistic exchange—would go something like this:

  “Do we really need to say this?”

  “I think we do. It’s an important point.”

  “Hmm. I just don’t like the way you’ve said it.”

  Then his eyes would close as he’d lean back, fingers steepled across his belly. He’d start staring at a spot on the ceiling—a spot that would become part of our personal lore in collaborating. That spot—always the same one—seemed to be the source of his inspiration. Perhaps 30 seconds would pass in silence, and then he’d dash over to his computer with my draft in hand. He’d begin typing out the same idea in his own words, often using little of what I’d written. Almost always these passages contained some bold metaphor or striking phraseology. One that sticks in my mind is the tasseled-loafer passage: “You can bet your tasseled loafers that some judges, like Lord Denning, will be disposed to change the law to accord with their ‘moral sense,’ and that many more will, like Chancellor Kent, base their initial decision on their ‘moral sense’ and then scour the law for some authority to support that decision.”18

  Once he had completed his rewrite, we’d go through our editing routine as I described above, culminating in ceremoniously taping the replacement passage into the “BAG Master.” He’d take a pencil and put a huge X through the passage to be replaced.

  We fell into these patterns quite naturally. Instinctively I knew not to speak when he was staring at his spot or composing a sentence, and he would do the same when it fell my turn to write something in his presence.

  If the passage was short, or just a few words were to be changed, he’d make the change in pencil—either red or Number 2. (By contrast, I habitually edited in ink.) With anything longer than a sentence, he’d prefer typing. He was a fast typist, and he knew how to touch-type—a skill he’d acquired in high school. Unlike me, he wasn’t inclined to write out paragraph after paragraph in longhand.

  He was often physical. When he’d get an idea while we were sitting alongside each other, he’d nudge me with his elbow. At the outbreak of a disagreement, the jabs would be sharper. Sometimes we’d argue for five or ten minutes on some point or other, but usually we’d find a way of reconciling our views. When we couldn’t, we’d call a circuit judge’s chambers to seek his or her views. At various points, we called Judge Frank Easterbrook, Judge Edith Jones, Judge Alex Kozinski, or Judge Thomas Reavley to ask their opinions. Invariably these calls helped us. Each time, though, the judges seemed quite surprised to be getting a call from the Supreme Court seeking their views on advocacy.

  One dispute between us had to do with the summary of argument in a brief. I already knew his idiosyncratic stance from the interview I’d conducted with him in October 2006.

  “It’s a waste of time and space!” he said, elbowing me in the shoulder.

  “Nino, your views on this are out of step with those of most judges. You wouldn’t want to read a book without reading the dust jacket first.”

  “I always do that. I hate dust jackets! I never read the dust jacket. It’s a waste of time.”

  “Are you kidding?”

  “Absolutely not. Throw them right away.”

  “Well, please stop that. Dust jackets have important information on them. And books are more valuable to collectors if they have dust jackets. Our book is going to have a dust jacket, with our mugs on it!”

  “That’s true. But the summary of argument in a brief is completely unnecessary. Just read the argument in full!”

  “You’re an outlier. Other judges don’t agree with you!”

  “How do you know that?”

  “Through interviews. You know I’ve interviewed judges all over the country. You’re the only judge who’s ever said that. Alito and Thomas say precisely the opposite.”

  “They do?”

  “You bet. I can show you.”

  I powered up my laptop and showed him a brief video clip of Justice Alito stressing the importance of writing a good summary of argument because that’s one of the best ways of first learning about a case.

  “Well, I’ll be,” said Justice Scalia, sitting down at his computer. He began typing a passage that ended up appearing on page 97 of the published book. I sat in a chair beside him and watched as the words appeared on the screen: “Some judges never read the Summary of Argument, which will precede the Argument section of your brief. Why read a cut-down version when you’re about to read the real thing?” So he’d stuck to his dust jacket view. I remained silent as he bit his cuticle for a moment. Then he continued typing: “Other judges, however, consider the Summary of Argument indispensable—indeed, the most important part of the brief. As long as judges of the latter sort exist, and the judge you’re appearing before has not publicly committed, you must include the Summary.”

  “That’s good, Nino.”

  “You think so?”

  “Well, much better than your initial position!”

  Then we explained something that all too few advocates understand: “Unlike the Introduction, the Summary of Argument is not just a preview of the topics of argument that are to
follow. It is a short version of the substance of the arguments under each topic. . . . State the main lines of thought without embellishment, omit quotations, and cite only key cases (if any at all).”

  We spent probably ten minutes considering whether to capitalize the names of the parts of the brief, and throughout the day we vacillated. In the end, we decided that capitals helped demarcate the discrete sections we were referring to at any given point in the discussion. We wrestled with countless tiny decisions like this throughout the project—and Justice Scalia wanted to be fully involved with all the minutiae.

  We kept up our pace of weekly assignments from late July through September, both of us working on the same sections at the same time. Then I’d combine our two versions, meanwhile editing his work just as I would anyone else’s. That meant, among other things, contracting his instances of “do not” and “does not” and “is not”—so that they generally (not invariably) became “don’t” and “doesn’t” and “isn’t.” Little did I know that these particular changes would threaten to wreck our collaboration.

  Invasion of the Apostrophes

  Early on in our work, I noticed that all my coauthor’s negative advice (and there was an abundance of it) was couched as “Do not do this,” or “Do not do that.” As had been my stylistic habit since the early 1990s, I changed “Do not” to “Don’t” in all instances—partly to regularize the style and partly to improve the tone. But then I noticed in the batches that he’d returned to me, Don’t was crossed out in pencil, and Do not was written above. I figured that we were in for a discussion of the issue, but I had no idea what a source of ferocious conflict this would be, and what a serious impasse it would create.

  “We cannot use contractions!”

  “But we must!” I insisted. “A lot of our advice is negative. We can’t keep saying ‘Do not do this, Do not do that.’ It sounds stilted.”