Nino and Me

by Bryan A. Garner

  This wasn’t the introduction I’d expected. I stuck my hand out and said, “Hello, Justice Souter, my name is Bryan Garner.”

  Justice Souter pursed his lips and looked down at my hand, which was poised awkwardly in midair. Then I added, “I’m not asking for an interview—just to shake your hand.”

  He hesitantly withdrew his hand from behind his back and shook mine. Justice Scalia had become silent, I think in disbelief.

  “Good to meet you,” I said.

  “Likewise,” I believe Justice Souter might have said as he continued on his way.

  He wasn’t unfriendly. Doubtless he felt as if he was being aggressively pressured. And Justice Scalia’s playful badgering seemed to make him withdraw.

  “That was really strange,” Justice Scalia remarked as we got onto the elevator. Although I knew that the Justices liked each other, I couldn’t help thinking that if they’d been two of several children at a playground, they’d have been the least likely to be playing together.

  Passive Aggression

  Soon we were back in chambers having a lengthy argument about passive voice. Justice Scalia wanted the very first line of the introduction to read: “Judges can be persuaded only when three conditions are met.” That, in fact, was his suggested rewrite of my sentence: “You can persuade judges only when you satisfy three conditions.”

  “I like mine better!” Justice Scalia insisted.

  “But it’s passive voice!”

  “There’s nothing wrong with passive voice.”

  “Not always, that’s true. But it’s best to avoid it when we can.”

  “We’re going with passive!”

  “You use a lot of passive voice,” I said. “In fact, I was surprised at how much passive voice you use. For such a bold writer, and one with such a reputation for flair, you use it astonishingly often.”

  “When it’s right, I use it.”

  We argued about this leadoff sentence for perhaps five minutes. Again, the argument continued as he was in the restroom, shouting to me. “You’re just trying to change my style!” he said in a very accusatory tone.

  “I am not! You’re the one who changed my sentence! But if I am changing your style, it’s only because it needs changing!”

  Suddenly I became aware that I was shouting back at him. Everybody had gone home for the day, and here we were—alone and shouting at each other. I made a mental note to modulate my voice and vowed never to shout at him again. But when he emerged from the restroom, he seemed unperturbed. If anything, he seemed to enjoy the argument.

  “Okay,” I said, “if I can’t budge you on this one, we’ll leave it your way. The sentence is ten words either way. But I promise you there are going to be other sentences that need a passive-to-active transformation.”

  “We’ll see when we get there.”

  I could tell these were going to be long sessions. We had hundreds of edits to go through. I had my “BAG Master” with some 20 of these commenters’ remarks in the margin, all color-coded to tell us who made each comment. Among the most copious substantive commenters were Justice Scalia’s friend Professor Michael R. Devitt of San Diego and Justice Scalia’s son Eugene, a D.C. lawyer. We remarked again and again how grateful we were for the voluminous annotations.

  We extended our weekend editing session through Sunday, meeting at the Court before noon. I showed him a comment from one of my readers, Steven Hirsch of San Francisco. Hirsch had said that the book was recognizably Garner but that there was scarcely any hint of Scalia. Upon reading this, Justice Scalia grew quiet with concern and worry.

  “I think we just need more of your metaphor and verve in general. We do need more Scalia personality in the book.”

  “Well, you’ve rewritten my work all in your style.”

  “No, I haven’t. It’s just that we need to massage more paragraphs to put more color in the work. Now that we have a complete draft, it’s time to do that.”

  “This is hard work,” Justice Scalia said, “harder than I figured when I signed up for it.”

  “I know. Writing a book is always hard—really hard. It’s a lot harder than people think.”

  “You’re telling me. I think we need another weekend together. Can you come back next weekend?”

  “I can be here Sunday and Monday, the 11th and 12th.”

  “Let’s see how the next draft looks.”

  It was 3 o’clock. “I want to call it a day,” he said. “Can I drive you to the airport?”

  “No. Don’t worry about me. Get back to Maureen. She’s been without you for three solid days.”

  “She’s probably glad about that!” he said, laughing. “I’m looking forward to dinner with her tonight. How are you going to get to the airport?”

  “I’ll take a cab. It’s easy to find cabs in front of the Court.”

  We packed up our things, he called a marshal to take me to the exit, and he took the elevator on down to the garage. He was still noticeably bothered by the comment that the manuscript showed little of the Scalia vitality.

  More Blowback

  My observation, as it turned out, wasn’t ill-founded. Late the next morning, on Guy Fawkes Day 2007, I received a four-paragraph e-mail from Justice Scalia. Unlike all the earlier substantial messages I had received from him, this wasn’t printed on letterhead and then scanned. Instead, it was typed as an e-mail with the subject line: “Mag. Op.” That reminded me that he’d taken to calling Making Your Case our “magnum opus.”

  But the message was not a happy one. He said he was having “buyer’s remorse” after our weekend session. He lamented that we had “cast the whole thing” in what was unmistakably my style, not his. Again he was resisting contractions, which he said were “not what a scholar and a Supreme Court Justice ordinarily uses.” He moved on to gender-neutralizing, which he said “everyone knew” he abhorred. And he resented my changing each instance of his using upon to on, calling his own two-syllable preposition “a perfectly acceptable style preference.” My small stylistic victories had left him unsettled: “If we had set out to make this look like a book that you wrote and I lent my name to, we could not have done much better. (Note that even in this informal message I do not naturally say ‘we couldn’t have done much better.’)”

  He wasn’t dictatorial in his approach to me, but instead was trying to persuade: “I hope you will give some thought to this, especially in light of the remark from one of your commenters that there doesn’t seem to be much of me in the book.” I had been hoping to cure this shortcoming with more of his striking metaphors, similes, and other turns of phrase—not by changing don’t into do not. Nevertheless, he said: “I am currently inclined to delete a lot (not all) of the contractions. That is a fetish of yours and not of mine. I should think you would want a book with a Supreme Court coauthor to have a somewhat more formal tone.”

  Yet he was conciliatory on one point: “I will continue to yield on your gender-neutralizing, but not cheerfully.”

  When it came to style, though, he said that he was not disposed to accept any more editing of his prose, adding “verb. sap. sat.,” meaning “a word to the wise.” Then came a clear direction: “Do the next draft the way we agreed (unless you want to eliminate most of the contractions). But I reserve the right to renege. Regards. Nino.”

  I called to discuss his concerns, and I broached a further problem: my conviction that citations ought to be footnoted, not interspersed throughout the main text. We’d already started quarreling about that. In September I had written a passage about footnoting citations, and that was where he had written “BULLSHIT!” in the margin. Now he was considering moving the citations up into the text of our book—a move that I couldn’t have accepted. We were at serious loggerheads.

  “I’m just not comfortable with the way things are going,” Justice Scalia said.

  Neither was I, and I began to worry. In a few hours he followed up to say that he’d make himself available Sunday the 11th and Monday the 12th.
I booked my flights that afternoon.

  The Trimble Solution

  Over the course of the evening, I fretted about what to do. I called my good friend John Trimble, a professor emeritus of English at the University of Texas who, over many conversations with me, had been following my progress with Justice Scalia. John saw things my way on all the points of conflict (contractions, sexist language, and footnoted citations)—in fact, he had influenced me on adopting contractions way back in the spring of 1991, when he and I began teaching LawProse seminars together. After I related to John the most recent developments in the Scalia–Garner collaborations, he suggested a novel idea: Justice Scalia and I should simply debate our three disagreements in the book itself. We’d set forth the Garner view and then the Scalia view, or vice versa.

  The next morning, I suggested this solution to Justice Scalia, who enthusiastically embraced the idea. “That’s great, Bryan. You write first, and then you let me write a dissenting opinion. I love that.”

  But after hanging up, I suddenly felt less sanguine about the idea. I’d be debating one of the most famous debaters of all time. And he’d be using his strongest rhetorical weapon—the blistering dissent.

  Within 24 hours, I had sent him all three of my “pro” positions. I imagine he read them with rapt pleasure, finding each opportunity I’d presented him for rebutting my points. That very afternoon, a scant four hours later, he sent me a message saying: “Bryan: Here are my dissenting views. I had fun. Nino.”

  Did he ever. He talked of how contractions “vulgarize.” And he wrote this clincher (which I still consider exaggerated): “I guarantee that if you use contractions in your written submissions, some judges—including many who are not offended by the use of contractions in the New Yorker, Time, Vogue, Rolling Stone, Field and Stream, and other publications not addressed to black-robed judges engaged in the exercise of their august governmental powers—will take it as an affront to the dignity of the court.” That’s enough to scare any lawyer away from contractions.

  On sexist language he injected even more vim: “I find it incomprehensible that my esteemed coauthor, who has displayed the inventiveness of a DaVinci and the imagination of a Tolkien in devising circumlocutions that have purged from my contributions to this volume (at some stylistic cost) all use of ‘he’ as the traditional, generic, unisex reference to a human being—incomprehensible, I say, that this same coauthor should speak disparagingly of ‘shibboleths,’ and feign inability to come up with an acceptable substitute for the clumsy ‘Do you not think?’ ”

  He was doing what he loved.

  At one point when I was making a passage gender-neutral, he exclaimed in exasperation, “You’re doing the same thing in this book that Ruth does to my opinions!” I responded, “Well, it’s a good thing she’s there!”21

  As for footnoting citations, Justice Scalia had this to say: “Whatever the merits of this debate, the conclusive reason not to accept Garner’s novel suggestion is that it is novel. Judges are uncomfortable with change, and it is a sure thing that some crabby judges will dislike this one. You should no more try to convert the court to citation-free text at your client’s expense than you should try to convert it to colorful ties or casual-Friday attire at oral argument.”

  These passages had the dual effect of spicing up the text and allowing Justice Scalia to vent his otherwise stifled frustrations about compromising with me on questions of style.

  When we started working together that Sunday afternoon, I mentioned to Justice Scalia that he likes a good argument.

  “I do like a good argument. I think the book is much better now.”

  “Me, too. Have you ever heard Monty Python’s skit ‘The Argument’?”

  “No. But I’ve heard of Monty Python.”

  “I should play it for you.”

  I ended up getting out my iPod and playing the audio skit for him, much to his delight. It’s about a man who walks into an office to pay for an argument with someone. When he gets to the room where the argument is to be held, his interlocutor begins contradicting everything he’s saying, including the fact that he has paid for an argument. There ensues an argument about whether mere contradictions amount to an argument at all, and by the time it gets interesting the interlocutor rings a bell and says that the time is up. Then there’s an argument about whether the customer got his money’s worth—whereupon the interlocutor refuses to argue any further until the customer pays more.

  “That’s really funny,” Justice Scalia said.

  “You’d probably pay for an argument if you couldn’t otherwise get one.”

  “I might indeed,” he said, smiling.

  In the end, we decided to add a fourth argument. I took the position that nothing of substance should appear in footnotes—in particular, no complete sentences that readers would be expected to read. I backed this up with ten citations (in footnotes) to appellate courts saying they wouldn’t consider any argument raised exclusively in a footnote. Justice Scalia took a softer position here, since our differences weren’t great: “I know of no court that will categorically not consider substantive footnotes. The citations in my coauthor’s scary footnote pertain to the raising of fundamentally new claims or new arguments.”

  After the point/counterpoint arguments had been set in stone, I happened to receive an e-mail from a lawyer in Utah who had noticed a major trend toward contractions in the opinions of then–Tenth Circuit Judge Neil Gorsuch. She sent me 11 examples of could’ve, might’ve, should’ve, and would’ve from his opinions, including this: “While I do not doubt for a moment that additional investigation would have been a good idea, asking whether the officers might’ve, could’ve, or should’ve done more investigation before effecting an arrest is not the test.”22 I responded to the lawyer by saying: “Interesting: Watch for the Scalia–Garner book due out soon—Justice Scalia objects to contractions, and I defend them.” Meanwhile, I sent a blind copy to my coauthor.

  He responded with just two words: “Sounds godawful.”

  An Outré Request for Testimony

  In that second long weekend together, over our Sunday-evening dinner, I broke some bad news of my own. My divorce case had now been pending for 15 months, and my soon-to-be-ex-wife’s lawyer was saying he wanted to take Justice Scalia’s deposition. My lawyer had asked me to get some convenient dates. This embarrassed me greatly, as I could see no real reason for it. I told Justice Scalia about the imbroglio.

  “My deposition? But why?”

  “He’s saying he needs to investigate the financial arrangement between us for the book.”

  “Why would it matter?”

  “It doesn’t, really. But Texas is a community-property state.”

  “So what?”

  “Even though I had filed for divorce and moved out before interviewing you and before getting the idea for this book, I’m creating it while still legally married. So she may technically have rights in it as a matter of community property.”

  “That’s crazy. Why not give them a copy of the contract?”

  “We’ve given it, but her lawyer says he wants the deposition anyway. I think this may be just a bizarre form of gamesmanship. Or maybe he just wants his day in the Supreme Court. I can’t imagine what they want other than to embarrass me in front of you.”

  “Lookit, bring it on. Tell them to come depose me. It doesn’t bother me. You’re my friend, and I’m standing by you. If they want to waste my time, and it helps you, I’m glad to do it.”

  “I’m so sorry this is happening.”

  “Don’t worry about it. I want to see you through this. I know it’s hard. Call Angela and get some dates.”

  “Thank you, Nino.”

  In the end, the deposition never took place. But I was gratified by my coauthor’s unflinching resolve.

  We had been working weekends together, and Justice Scalia was cheery. In mid-November 2007, he sent me this e-mail message: “Bryan: Great session this weekend. I think one more two
-day session should do it. Excelsior! Nino.” We agreed that our final two-day session would be December 27 and 28. He and some friends would leave the next day to go hunting for geese—but he offered to skip the trip if those two days didn’t fit my schedule.

  Breaking News

  Meanwhile, the legal reporter Tony Mauro had gotten wind of our project and called me. Because I’d known him for years and trusted him, I spoke to him at some length—making the snap judgment that neither Justice Scalia nor West would mind my talking to a reporter even though the book wasn’t to be published until mid-spring. Mauro asked whether I could get Justice Scalia to talk with him, and I said I’d try. But my coauthor was resistant.

  “I don’t want to talk with that man. I won’t talk to him!”

  “Nino, he’s a friend of mine. I’ve cooperated with him on past stories, and I think he’s kindly disposed. Don’t assume that it’s going to be negative.”

  “It will be, believe me. It always is.” Doubtless he had been conditioned to react quite differently to the press through his own bad experiences.

  “Not this time. I’m involved. He’ll be square with me. Let me help you on this aspect of media relations. Sometimes you just need to cooperate with them. If you’re nice to the media, they’ll generally be nice to you.” This might have been my callowness talking.