“I never use contractions. I don’t like them. They’re infra dignitatem.”
“You just used a contraction in that statement!”
“Lookit, I’m talking about formal writing. You know what I mean.”
“And why do you say infra dignitatem? Most scholars say infra dig for short.”
“That’s a colloquialism. And it’s a contraction! It’s beneath one’s dignity.”
“I used to have a bias against contractions myself. But look how the best nonfiction writers of our day write: they use contractions.”
“What do you mean?”
“The New Yorker. The Atlantic Monthly. Harper’s.”
“They’re a bunch of lefties.”
“Okay, then National Review!”
“They’re magazines. We’re writing a book.”
“I can cite readability studies showing that contractions make writing more readable. They really help. We want people buying this book and reading it.”
“Well, I admit you know about that. I’ll conditionally go along for now, but I’m not happy about it. What really upsets me is what you’re doing on gender. You’re neutering my prose.”
“I’ve made it gender-neutral, yes.”
“That’s Jacobin, absolutely Jacobin,” he said while walking into the private restroom adjoining his office.
I wasn’t quite sure what that word meant—even though I recalled that he’d used the word a few times before—but I didn’t want to confess my ignorance. So while he was out of view, I sneaked a look at Webster’s Second: “violently radical.” But Jacobin was defined as a noun; Jacobinic, the big book suggested, would have been the right adjective. Naturally, though, I managed to suppress my urge to correct him—which, in any event, would have been insufferably pedantic. After all, I had been unfamiliar with both words.
When he came out, I said, “Nino, this isn’t radical at all. Half our readers are going to be women. Why offend them—or risk offending any of them?”
“Everybody knows that the masculine pronoun includes the feminine.”
“Well, we all used to be taught that, it’s true. It’s a rule that first appeared in the work of a grammarian named Anne Fisher, writing in 1745.”
“You see! A woman came up with that rule,” he said.
“But very few people in the world know that, and it doesn’t matter. The fact is that people don’t really see it that way. The English language is inherently sexist without an epicene third-person singular pronoun.”
“It is not. Grammatical gender is arbitrary, just as in all the Romance languages. If I say ‘Everyone can think for himself,’ everyone knows that includes women. You’re just caving in to the PC police!”
“I am not,” I said. “I’m just being practical and just.”
“Many women don’t care, and they prefer the generic he.”
“Of course that’s true of some. People don’t fit stereotypes. Many men are bothered by the generic he.”
“What kind of men are they? Namby-pamby men? They’re being ridiculous.”
“Nino, I’m conservative in matters of language. You know that. The point is that we can write this thing without having the question of sexism even enter anyone’s head. Why make some readers suspect that we’re sexist troglodytes?”
“The problem is you can’t write around the problem. Readers will see through it.”
“No, they won’t,” I said. “And I don’t think they could if they were prompted to try.”
“I totally disagree,” he said. “Your rewrites are awkward.”
“Instead of ‘Everyone can think for himself,’ all you have to say is, ‘All of us can think for ourselves.’ ”
“But there are many other sentences that aren’t so easy. Believe me, I’ve seen it.”
“Nino, if I recall correctly, at some point early on you said that nothing we say should gratuitously contradict your jurisprudence.”
“That’s right. What of it?”
“Well, I have a jurisprudence of writing. I’ve written at least four books saying that it’s highly desirable to write in a gender-neutral way.”
“You have? Let’s see one.”
“You have three right here behind your monitor: The Winning Brief, The Elements of Legal Style, and Garner’s Modern American Usage. Let me show you The Winning Brief, section 56.”
“Buh-buh-buh.” He flicked through the pages of the second edition of The Winning Brief and began reading aloud: “ ‘Shun sexist language, but do it invisibly.’ Hmm.” I pointed to the words of Chief Judge Judith Kaye of New York: “I believe that gendered writing . . . will one day be immediately recognized as archaic and ludicrous. My only message to brief-writers is that, to many brief-readers today, it already is.”
“You see?” I said.
“You devoted three full pages to this subject?”
“It’s really important in many people’s minds—and it’s important to me.”
“It’s balderdash. But I’ll go along for the time being. You see what an agreeable coauthor I am?”
“You’re a great coauthor, Nino.”
Proto-Draft
By early September we had a rough draft. I suggested that we send the manuscript to lawyer friends for their comments on possible improvements. In the end, he sent it to 15 friends of his and I to 30 of mine. As the comments trickled in, I’d incorporate many of their suggestions into the manuscript. If his commenters suggested new avenues of argument or analysis, he’d write an additional paragraph or two.
Meanwhile, the two of us edited the book independently. On September 19, I received a voluminous pile of his edits that he had made while visiting his place at the Outer Banks. Many of these were buttressed by his usual summer visitor, the learned and urbane Judge Marty Feldman of New Orleans. Justice Scalia would often annotate his edits with, “Marty agrees!” Justice Scalia lightly reorganized the table of contents, containing the 108 sections we then had in the draft (it would grow to 115). He moved paragraphs around, added new ones, deleted lots of sentences, and generally gave the manuscript a heavy massage.
For what became section 31 of the book (“Set timelines for the stages of your work”), I had given a hypothetical example in which the brief-writer produces the first draft on Sunday afternoon. Justice Scalia wrote in the margin: “Some readers would disapprove of working on Sunday. Can we revise the time schedule? Use Sunday as the cooling-off period.” Naturally, I made the adjustment.
His marginalia (besides “Marty agrees”) were often wonderfully colorful. “WORDY WORDY,” he’d admonish, or “I do not agree (vigorously),” “UGH!,” and even “BULLSHIT!” On the whole, though, the edits were more restrained and easily entered.
We scheduled a marathon session to complete the book: November 2–3, along with November 4 if necessary. The idea was to work through the more difficult comments we’d received and to approve the final selection of shaded boxes (I had collected some 400 quotations, but we agreed we’d use only about 85). And of course we’d have dinner both nights to decompress.
While we were working together on November 2, I suggested, “We should have some type of photographic record of how we work together.”
“What do you mean?” he asked.
“Well, when I’m with you, I feel as if it’s a historic event. Why don’t we have Angela or Crystal [his other assistant, Crystal Martin] snap a couple of photographs? I just want to remember the way you’ve set up this table, how we sit together, and so on.”
“Just a moment,” he said, going to his phone behind his desk. “Angela, send over the Court photographer.”
Ten minutes later, Steve Petteway, from the curator’s office, appeared with a camera and introduced himself. “Steve,” Justice Scalia said after introducing me, “we want some photographs of us working together. We’re just going to carry on as if you weren’t here. Just document more or less what we’re doing.”
That’s what Steve Petteway did. In our decad
e-long writing partnership, Petteway’s photographs on this day are the only ones that show us actually composing paragraphs together. Although Justice Scalia didn’t like most of them because he thought he looked mean, we used two of the better ones in the preshow for our various presentations.
The Inner Child
At one of our dinners at Tosca during those sessions, Justice Scalia and I traded stories about our past.
“How did a kid from Texas become a snoot?” he asked me.
“My parents cared a lot about language. My mother would call the local television station every time the weatherman would call himself a ‘meterologist.’ ”
“Oh, that’s a bad one,” he said. “Leaving out the first o: /mee-tee-uh-ROL-uh-jist/. It has six syllables, not five.”
“Right. And then I had an early run-in with shall.”
“You did?”
“Scarred me for life.”
“What happened?” he asked.
“I can’t really talk about it without getting emotional.” Indeed, to this day I cannot.
“Tell me.”
“I really shouldn’t. I might cry. I don’t want to embarrass myself. Besides, Webster’s Third ends up being the hero of the story. And contractions come into play.”
“Oh, now I’ve got to hear it. You won’t really cry, will you?”
“I might. I regress.”
“Well, I won’t force you. But if you’ll tell me that, I’ll tell you why I never learned Italian.”
“Okay. I grew up in the Panhandle of Texas on the High Plains, near Palo Duro Canyon—the second-largest canyon in the country.”
“No kidding.”
“It’s 1968, I’m in the fourth grade. And we had this wonderful teacher, Mrs. Pearcy, whom I really liked—my mother thought a little too much.”
“Ha!”
“That year, a student teacher shadowed Mrs. Pearcy: Miss Phillips. She was a college student trying to earn her teacher’s certificate. I remember her as cold, sour, sullen, and constantly disapproving—especially of a certain child named Bryan Garner.”
“Can’t imagine why,” Justice Scalia said, eyebrows raised, sipping his Campari and soda.
“One day a professor of education walked into Mrs. Pearcy’s classroom. I knew him. He was a friend of my father’s. Mrs. Pearcy went to the front of the room and explained that Miss Phillips would now be teaching the English lesson for the day while the professor of education observed. This was a required element in Miss Phillips’s teacher certification.”
“This is a long story, Bryan.”
“Yes. Bear with me. Miss Phillips came to the front of the class, stood nervously, and scowled. She then announced in a very artificial way, ‘Children, today I am going to teach you about contractions. Can anyone name a contraction?’ ”
“I was sitting on the first row. My hand shot into the air, and she called on me: ‘Bryan.’ ”
“Shan’t,” I said.
“ ‘No, that’s not a word.’ ”
“It is, Miss Phillips. It’s a contraction for shall not.”
“ ‘No. That’s not a word. Can anyone name a contraction?’ ”
“Other kids started shouting out isn’t and doesn’t and wouldn’t and couldn’t, and she was saying, ‘Good, children, good. Now those are contractions.’ Or at least that’s the way I heard it.”
“This really happened?” asked Justice Scalia.
“Exactly as I’m describing it. October 1968. I was nine. I clammed up for the rest of the class.”
“Is that the end of the story?”
“Of course not. I started eyeing the dictionary stand in the corner of the classroom. And my nine-year-old self thought, ‘I’m going to look this up.’ I didn’t know it at the time, but it was Webster’s Third. I felt certain it would vindicate me by showing that shan’t is a word.”
“I suppose Webster’s Third has its uses.”
“It certainly did to me that day.”
“Wait a second. How did a kid from a small town in West Texas know the word shan’t?”
“Mr. French!”
“Mr. Who?”
“Don’t you remember the television show A Family Affair, with Buffy and Jodie and their English butler, Mr. French?”
“Oh, of course! ‘Children, we shan’t be going out today.’ ” Justice Scalia mimicked an upper-class English accent.
“Precisely. So I was sure of my ground.”
“Did you confront Miss Phillips with Webster’s Third?”
“I tried. At the end of class, I looked up shan’t, and there it was: ‘contraction of shall not.’ I lugged the book over to where she was standing.”
“And . . .”
“It was an inconvenient moment. She was speaking to the professor of education, who of course had come to evaluate her performance.”
“Ooh. She should have been marked down for her quick dismissal of your suggestion.”
“Well, I wish he’d seen what happened next.”
“What happened?”
“When he left, and I tried to show her the dictionary, she refused to look. I said, ‘Look, Miss Phillips, it’s a word! Shan’t is in the dictionary! It’s a word!’ I was genuinely excited. This was no attempt at a comeuppance.” I got a little choked up as I told the story.
Justice Scalia reached over and put his hand on my forearm. “This really affected you deeply, didn’t it?” he said.
“Yes,” I said. “I told you I still get emotional when I tell this story. Anyway, she said, ‘Bryan Garner, that’s not a word, and I’m not looking at that book. Now you go run and play.’ ”
“You must have been a sensitive child.”
“I suppose. That was one of the most important incidents of my life—my first encounter with anti-intellectualism. In retrospect, it probably put me on the road to lexicography. I’m sure that my entire career has been some twisted, protracted psychological attempt to get back at Miss Phillips.”
“Ha! Well, I don’t have anything in my background with quite so much anguish tied to words. It was just something I shared with my father. But I can see now why you’re a word-nut.”
“Okay. Now tell me why you never learned Italian. I don’t get that. Your father was a professor of Romance languages.”
“That’s true. But the way he spoke Italian was something he wasn’t proud of. It was dialect. It was considered low-class Italian. It would have sounded like an uneducated yokel, the equivalent of ‘Hey, youse guys!’ ” He was affecting a loutish gangster voice from a James Cagney movie.
“That’s so strange. He was teaching Italian. You’d think he’d have picked up the cultivated Italian accent.”
“I know. But he was convinced he hadn’t, at least not for everyday talk.”
“Yet he was teaching Italian to other American students.”
“It is kind of strange, isn’t it?” he mused.
“I think there was something else going on,” I said.
“What’s that?”
“In your parents’ era, ethnic assimilation was an extremely strong value. Parents were ambitious for their children, and no matter how proud they were of their heritage, they wanted their children to be thoroughly American.”
“You know, that’s true—unlike today, when assimilation is seen to be a bad thing,” he said.
“I’ll bet that’s why your parents didn’t speak Italian in the home. They were practicing their own English, and they perhaps feared they might retard your progress in English.”
“You don’t know that,” he said, scowling and sounding skeptical—and almost as if I’d hit a nerve.
“No. I’m just playing amateur psychologist. I’m probably quite wrong. Or maybe they didn’t want you speaking English with an Italian accent.”
“Hmm. Maybe not.” He was chewing on his lower lip quite a bit that evening, and he seemed lost in thought once we started talking about his past.
“What part of Italy did your
mother come from?” I asked.
“She was born here in America. Her parents came from Italy.” He didn’t quite answer my question directly.
“Maybe that explains it as well. Her dialect might have been quite different from your father’s, and maybe that would have complicated things.”
“He wanted me to study Italian in college, but I never did. I think I really disappointed him there.”
“Don’t feel bad, Nino. He’d have made things painless for you if he’d spoken Italian to you whenever the two of you were together before you were ten years old. Painless.” I was referring, of course, to the natural facility that young children have for language acquisition—whereas it’s much more difficult for a college-age student. “A famous linguist, Max Black, said that young kids can acquire a new language as effortlessly as they catch the measles. You shouldn’t feel bad.”
“But I still do,” he said. “I disappointed my father.”
Greeting Justice Souter
During one of our sessions that month—November 2007—a curious thing happened. To put it into context, though, I must explain that from the preceding October to March, I had filmed interviews about advocacy with eight of the nine sitting Supreme Court Justices—all but Justice David Souter. In the end, the project was considered newsworthy enough to receive front-page notices twice, once when the interviews were released as videos on the Internet19 and once when the print transcripts appeared.20 Although Justice Thomas initially declined by letter, a word from Justice Scalia persuaded him to reverse that decision—and the interview went exceedingly well. Only Justice Souter’s letter politely declining the invitation remained firm.
In fact, Justice Souter didn’t acknowledge my follow-up letter to him, and Justice Scalia’s friendly word on my behalf had no effect. So by late 2007, I’m sure I had resigned myself to not getting an interview with the famously introverted Justice.
A chance happening confirmed that result. As Justice Scalia and I were leaving for lunch one day, walking down the ornate marble corridors of the Court, we rounded a corner where a heavy, elaborately decorated gate separated the public from the private areas. Justice Souter walked through the gate just as we were approaching. The gate clicked shut behind him. Before he saw us some 50 feet away down the hallway, I whispered to Justice Scalia, “Lookee there. You know, I’ll never get that interview. Would you introduce me?” I’m certain my comment was audible only to my companion, who suddenly kicked into a highly extroverted mode of good-natured hectoring as we walked up to him: “David, give this man an interview. C’mon! You ought to do an interview!”
Nino and Me Page 9