The 60 Minutes piece ended up airing on April 27, and everyone seemed happy with it. It was part biography, part judicial profile, and part book promo. The whole thing was positive.
A few days later, I heard from a CNN producer who wanted us to appear on the morning show. I passed it on to Justice Scalia, saying: “Apart from 60 Minutes, it’ll be our only joint media appearance for the book.”
He responded: “Bryan: I do not want to do the CNN interview. The morning audience is not fertile ground for our book, and I don’t want to overdo my exposure. I will be doing Brian Lamb, and Laura Ingraham, and perhaps Charlie Rose. That should be enough. Sorry to say no.”
Dallas Bar Association Filming
Two nights after the 60 Minutes piece aired, Frank Stevenson, president of the Dallas Bar Association, threw a party at the Belo Mansion in Dallas, the association’s headquarters, to commemorate the publication of Making Your Case. This was April 29, 2008, the day after the official publication date. Precisely a week before, I’d been in chambers with Justice Scalia, and we had recorded a film that I played for those attending the party. Here’s how it went:
SCALIA:
So, Bryan, this is the Dallas Bar Association, is that right? Am I supposed to look at the camera, or at you?
GARNER:
At me.
SCALIA:
All right. Good.
GARNER:
These folks have gotten together to celebrate the book.
SCALIA:
And to buy it I hope! [chortles]
GARNER:
We hope! [laughs] Now why did we write this book?
SCALIA:
Why does anybody write a work of nonfiction? To transmit useful knowledge to somebody else. Right? I mean, I’ve been doing this judging thing for, what, 26 years now and have learned a few things. And, more important, a lot of friends of mine have learned a whole lot of things. It would be a shame to let it all go to waste.
GARNER:
Our friends were really very helpful to us on this, weren’t they?
SCALIA:
Oh, yeah! Probably more helpful than you or me. [chuckles]
GARNER:
Well, it was a great process wasn’t it. We had probably 40 people look over the manuscript, didn’t we?
SCALIA:
It must have been that many. Well, you have the credits there in the beginning. Was it that many? Forty?
GARNER:
A lot of federal judges; a lot of friends.
SCALIA:
And practitioners—successful practitioners.
GARNER:
What are we going to tell people when they ask, “Why a new book on advocacy?”
SCALIA:
Because you assured me—you know, I had never surveyed the field—that there was not a modern handbook, post-Cicero, that was very helpful. Things have changed a lot, even in the last 40 years. I mean, the nature of the appellate practice, with 20-minute appellate arguments, and a lot of questions from the bench—that’s all quite different from what it was 40 years or so ago.
GARNER:
Much more active questioning.
SCALIA:
[laughing] Oh yeah! Sometimes nasty.
GARNER:
Do you like the idea that you’re continuing a tradition of Italian thinkers on rhetoric—namely, Quintilian . . .
SCALIA:
[smiling] Oh, come on! Get out of here! I mean . . .
GARNER:
And Cicero, and then we skip a couple of thousand years, but we have . . .
SCALIA:
They’re Italian? I don’t know that they’re Italian. You know, Rome was empty for several decades after all you northern barbarians came down and destroyed it. I’m not sure I’m a descendant of Quintilian. Nobody ever told me that.
GARNER:
Now you and I had some disagreements in the book, didn’t we?
SCALIA:
[looking innocent] Did we? Did we have disagreements?
GARNER:
I think we had disagreements.
SCALIA:
They’re all set forth there. The only ones we had are set forth and described—at least the only ones we couldn’t resolve.
GARNER:
We resolved a lot of things, didn’t we?
SCALIA:
I yielded more than you did, probably.
GARNER:
But we were able to work most things out.
SCALIA:
I’m that kind of guy. Go along to get along. So I don’t write many dissents.
GARNER:
But when you do write them . . . You’re kidding about not writing many dissents, right?
SCALIA:
Of course I’m kidding.
GARNER:
You can be very forceful. I think in a way, being your coauthor on this book, and having you dissent, I think I’ve experienced something that only eight other human beings have probably ever experienced.
SCALIA:
[big chortle] I don’t know. I had colleagues on the court of appeals. [continues laughing]
GARNER:
I guess that’s right.
SCALIA:
I was sort of sharp.
GARNER:
You throw a mean punch.
SCALIA:
You took some good hits.
GARNER:
Right on the chin! Well, is there anything that you’d like to close with for the members of the Dallas Bar Association?
SCALIA:
Yes. You know that’s my circuit down there [the Fifth Circuit]. I’m the Circuit Justice for Texas, Mississippi, and Louisiana, and I’m delighted to serve in that capacity there. They’re good folks down there, and so different from New York City.
GARNER:
I’ll bet they are. You’ve got a lot of friends in Texas.
SCALIA:
I hope so.
GARNER:
Well, thanks very much for taping this.
SCALIA:
Always a pleasure to talk to you.
GARNER:
And now, in Dallas, we’re going to get back to drinking.
SCALIA:
[laughs]
GARNER:
It’s a cash bar.
SCALIA:
Have a bourbon and branch water for me!
But then we kept the tape rolling, and we talked some more about the work we had done on Making Your Case. We reflected on the process of writing and editing:
SCALIA:
As you noted from our collaboration, I am not a facile writer. And I tend to suspect that whoever is isn’t a very good writer.
GARNER:
But once you got into it, you were a pretty facile writer. I mean, once we got writing, I thought it flowed pretty easily—off your fingertips.
SCALIA:
Oh, so many times we’d sit down, put it one way, delete that, and put it another way. And if I went through the book another time, I’d still be making changes. You probably would too, because you’re as much of a nerdy perfectionist as I am.
GARNER:
Well, we will do that in future editions, won’t we?
SCALIA:
Oh, I think we will.
GARNER:
Well, I really enjoyed working with you.
SCALIA:
I did too, Bryan. It was great fun.
Further Plans
After filming that short video in Justice Scalia’s chambers, we went to dinner, again at Tosca. Meeting us there was the woman I’d begun dating, Karolyne Cheng. Born in Dallas to immigrant parents, one from Taiwan and one from Hong Kong, she was reared from the age of seven in North Attleboro, Massachusetts. After receiving a degree in philosophy from Boston College, she attended Texas Tech School of Law—which is coincidentally in the city of my birth, Lubbock. Karolyne had joined an intellectual-law boutique law firm in Dallas, where she was both prosecuting patents and litigating them.
Justice Scalia wanted to know how we
’d met. Karolyne explained that at the behest of her boss, she had attended a LawProse seminar in March 2007, and then we’d met when she came to another in June. Smitten, I’d soon persuaded her to be my guest at yet another. Because she’s smart, gregarious, polymathic, down-to-earth, quick to smile, and contagiously vivacious, Justice Scalia seemed to like her instantly.
“Should I call you ‘Lyne,’ as I’ve heard Bryan do, or ‘Karolyne’?”
“Only close friends and a few family members call me ‘Lyne,’ ” she said. “So I think you’d better call me ‘Lyne.’ ”
He smiled. “Lyne it is.”
After the introduction that night, he was always as eager to see her at any social occasion as he was me. Okay, more so.
That night, we discussed at length the possibility of a second book on the interpretation of legal documents. He was mildly interested but skittish. The second book would involve a lot more work than the first, and the first he considered almost unbearably difficult. Still, he said he’d think about it.
Within a couple of weeks, on May 11, I’d sent him a draft contract that our publisher had sent for Reading Law, thinking he’d accept. But the next day, he called to decline.
By e-mail, we talked about publishing his essays and speeches, and I offered to serve as both agent and editor. He formalized our agreement by writing: “I gladly accept your offer. I would prefer Knopf.” Unfortunately, logistical difficulties arose, and this became a back-burner project for both of us until 2014.
Kennedy Center
Shortly after the publication of Making Your Case, Karolyne suggested that Justice Scalia and I team-teach from the book. She thought we could promote the book and further lawyers’ training (one and the same, really) by holding a major seminar in Washington, D.C. She rather ambitiously suggested having it at the Kennedy Center for the Performing Arts. When I called Justice Scalia to see whether he’d be interested, he liked the idea and especially liked the Kennedy Center as our venue. My staff at LawProse soon booked the Kennedy Center for us—no easy task in itself—for July 25, 2008. Thomson/West agreed to videotape the entire event with the understanding that LawProse would hold the copyright. Profits would be quietly donated to Legal Aid.
On the morning of the event, Karolyne and I met Justice Scalia at 9:45 at the Kennedy Center and were taken by staffers to the greenroom, where we’d spend our time before the show and on our lunch break.
Justice Scalia and I were both nervous. People had flown in from all over the country for this seminar, and we wanted to make it worth their while. We were to lecture for five hours (with a 90-minute lunch break), covering all 115 points in Making Your Case. We’d arranged that he’d do the odd-numbered sections, and I’d do the even, each briefly amplifying the other’s sections as we thought desirable. It was a lot of material, and we’d never lectured together before. Justice Scalia had never given such a lengthy presentation—and for my part, I wasn’t at all sure whether I’d be playing the straight man or supplying the humor. It turned out to be a little of both.
Onstage
If I was worried about precisely how to warm up the audience, Justice Scalia removed any qualms by taking control. He said, with a perfectly timed delivery that was punctuated with laughter:
I always wanted to be center stage at the Concert Hall. Actually, I’d prefer the Opera House, but you do what you can. This is probably—apologies to LawProse and my coauthor—the dullest act ever to play here, although I can think of some atonal music that would bomb better. There’s the famous New York joke about the tourist who asks, “How do you get to Carnegie Hall?” And he’s told, “Practice, practice, practice!” So here we are.
As we got into the substance, we relaxed and soon established a rhythm. Justice Scalia stuck pretty closely to the book, whereas I simply took the blackletter point and talked briefly about what it meant and why it was important. On the whole, we both seemed fairly extemporaneous. And once Justice Scalia started cracking jokes—some at my expense—the audience really warmed up. If I went on a little too long, he’d say, “Are you finished now?!” with mock irritability. People liked that.
“I’m quite finished,” I’d say.
“Next point, then!” And he’d move on.
At one point he thought I was getting a little abstruse. “What in the world are you talking about?!”
“Let’s move on,” I said, as the crowd erupted in laughter.
But then sometimes I’d needle him instead. “Well, that’s not what you told me in chambers!”
“I do think I did.”
“I don’t recall it that way.”
“I certainly did. And here’s what people must remember. . . .”
So there was a lot of good-natured raillery running throughout our presentation. It was a type of jocularity we’d employ in all our future presentations. People sometimes said they thought it was all fastidiously rehearsed shtick, but in fact all of it was off-the-cuff humor. Justice Scalia and I thoroughly enjoyed ourselves when performing.
During the lunch break, we had sandwiches backstage with Karolyne, my daughters, and my friends Eric English and Dick and Shelley Walinski. Everyone seemed exhilarated about how the presentation was going. But Justice Scalia was concerned that we’d gone through much less than half the book in half our time. I assured him that we could make up time in the second half.
I asked him over lunch, “Is this the first time you’ve performed here at Kennedy Center?”
“Not quite. I’ve been onstage as an extra in an opera.”
“First time as the main feature?”
“Yes, it certainly is. This is fun.”
In the final 30 minutes of our 90-minute lunch break, I had arranged for Tony Mauro to talk with us, and for West’s videographers to interview us. Justice Scalia still didn’t want to do either one.
“I don’t want to talk to Mauro!” said Justice Scalia.
I felt almost as if I’d experienced this before—as if he was challenging me to persuade or cajole him to do something he might in the end actually enjoy.
I told him that Tony Mauro was waiting next door.
“I don’t care. I won’t talk to that man. He won’t be fair to us.”
Now I was beginning to doubt my instinct from a moment before.
“Yes he will, Nino. He wrote a good piece about us in November. Remember that? Please talk to him.”
“I won’t!”
“Nino, if you want good press, you have to cooperate with the press.”
“No.”
“You can be charming. Ask him about his family. I learned some years ago that if you want good press relations, you have to show interest in the journalists. Ask how long they’ve been reporters. Ask about their jobs. It’s pure Dale Carnegie.”
“Really?”
“I’ve had only one bad experience with the press, years ago. I was preoccupied, and I showed no interest in the guy. He wrote a snarky piece about me in Texas Monthly. That’s never happened since. I learned to show interest in them.”
“You think he’ll treat us fairly?”
“I know he will. I have no doubt. But you must talk to him. Be your charming self.”
“Okay. Let’s go over.”
Next thing I knew, Justice Scalia and Tony Mauro were in deep conversation about Mauro’s daughter going off to college. I could barely break them apart when it was time for us to resume.
In the afternoon session, we put our four debates to the audience for a show-of-hands plebiscite—on sexist language, contractions, substantive footnotes, and footnoted citations. Justice Scalia was a formidable debater, and here his competitive streak came out strongly. I felt he all but browbeat the audience into siding with him, and of course he had a strong argumentative advantage as a Justice urging lawyers in a debate against a mere lawyer. As best I recall the votes of our audience, they were as follows: 80% to 20% on not making language gender-neutral (hence a Scalia victory there); 75% to 25% on banishing contracti
ons from briefs and opinions (another Scalia victory); 90% to 10% on occasionally allowing substantive footnotes in briefs and opinions (yet another Scalia victory); and 50% to 50% on footnoting all citations (a modest moral victory for me).
“You have to be dismayed by that,” I said in reference to the final vote, getting a laugh from the audience.
“I am a little,” Justice Scalia admitted grudgingly. “They’re not thinking it through!” Then he cracked a wry smile and we went on with the program.
Decompressing Afterward
When it was over, I announced that we’d be signing books for those in attendance. In the front foyer of the Kennedy Center, a line snaked on and on outside the building. We began signing books at 5:05 p.m. and stayed for 90 minutes. We signed more than 550 of them—a record, the Kennedy Center staffers told us, the previous record having been set by the great Placido Domingo.
This was the first of many times we’d sit together and sign books. It was here that I learned that Justice Scalia would sign only on the half-title page. He’d sign just below the title of the book, and then I’d sign just beneath his signature. If people didn’t have the book open to the half-title, he’d get annoyed, so Karolyne helped the Kennedy staffers alert people in line to open the book to the proper page before they approached the table. It was an assembly line, more or less, and he would only occasionally look up. At first, when participants wanted to take a photograph with us, he’d invite them to come around the table. But after a while, the line seemed so long that he insisted on moving things along: “No photographs!”
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