“Would you please inscribe this copy to Darla?” someone would ask.
“No inscriptions,” Justice Scalia ruled. “It’s not fair to the people behind you. Sorry.”
Soon everybody in line was told by staffers not to ask for inscriptions, and things ran more smoothly.
We’d chat between ourselves as people came through. “Your signature is beautiful, Nino. Did you cultivate that?”
“You know, I did! After I got on the Court, I spent an afternoon working on what my signature would look like. This is what I arrived at. You’ve got a fine signature, too.”
“Well, thanks. It has to be decent if it’s appearing alongside yours!”
Occasionally I’d recognize someone that I’d introduce to Justice Scalia. He was unfailingly gracious. But if I said something like, “Where do you practice?” he’d be bothered if the answer was prolix. “You’re getting behind, Bryan! You’re slowing us down! You’re being Chatty Cathy.”
“Sorry, Nino.”
And then we’d get back into the quick assembly-line signatures. This was the first time that I realized how much Justice Scalia enjoyed autographing books. He seemed to relish it.
When it was all over, Karolyne and I had a small reception in the JFK Suite at the Willard Hotel—complete with wine, hors d’oeuvres, and Campari. Justice Scalia stayed only briefly. Before the guests arrived, he told us how much he had enjoyed the entire experience, and I assured him the feeling was mutual.
The Lifetime Achievement Award
On August 8, 2008, Justice Scalia flew from Norfolk (he had been at the Outer Banks) to join me in New York City for the annual meeting of the American Society of Legal Writers—also known as Scribes. I’d been on the board of directors intermittently for 18 years, and the organization had decided to bestow upon him its highest honor: the Scribes Lifetime Achievement Award for Excellence in Legal Writing.
He and I met beforehand at the Harvard Club, where the luncheon would begin at noon. We sat down in the bar to have club sodas, knowing we’d soon have a glass of wine. It was the first time I’d seen him since the Court had handed down its historic Heller opinion, in which it declared a personal right to keep and bear arms. He had written the majority opinion—one of the most noteworthy opinions of his career.
“Have you read my Heller opinion?”
“Of course I have!”
“Do you think I got it right?”
“Well, I’m a textualist, like you, so of course I do. I think the policy is horrid, but your majority was much more compelling than Justice Stevens’s dissent.”
“What do you mean?”
“I wish the Second Amendment could be repealed. It’s just awful what we’ve done in this country—arming everyone so heavily.”
“But you liked my historical analysis?”
“It seemed impeccable to me.”
“And my textual analysis?”
“Well, you omitted to say that the preamble is a mispunctuated nominative absolute.”
“What?”
“The whole phrase ‘A well-regulated militia being necessary . . .’—that’s a nominative absolute.”
“That’s what it’s called?”
“Yes. And there should be no comma after militia. It’s as if you were to say, ‘This bar being clean, we can put our elbows on it.’ There’s no comma after bar.”
“It’s called a ‘nominative absolute’?”
“Right. You didn’t say that in your opinion.”
“I can’t believe I missed that! Why didn’t you tell me?”
“I didn’t know you were working on that case. We never talk about cases.”
“But you knew the Court had the case, and you knew it involved a nominative absolute.”
“Didn’t any of the brief-writers point that out?”
“Not a single one! Damn. I thought I’d covered every single aspect of that amendment, both historically and grammatically, and here you give me the name for it just off the cuff. I can’t believe I didn’t know it.”
I smiled. “I can’t believe you didn’t either, Nino. A nominative absolute is a noun or pronoun followed by a nonfinite verb or an adjective phrase. It’s grammatically independent from the rest of the sentence.”
“Give me another example.”
“He having left, we were all relieved.”
“You having told me this, I’m now wishing I could revise the opinion. But tell me, you think the opinion was substantively correct?”
“Of course! I just hate the result.”
“If you’d been on the Court, you’d have voted with me?”
“I’m a textualist, so of course. It’s hard to read the words ‘the right of the people to keep and bear arms shall not be infringed’ contrary to their plain meaning.”
“It’s a good illustration.”
“Of what?”
“You show me a judge who always agrees with the results he reaches, and I’ll show you a bad judge. Bryan, you detest the result, yet you’d vote that way.”
“Right. Your textual and historical analysis was compelling.”
“But I missed that it’s a nominative absolute!”
I chuckled. “You’re funny. Let’s go to the lunch. There’ll be lots of people eager to meet you.”
And there were. One of the first was my old friend John Wierzbicki of West Publishing. When I introduced John, first and last name, Justice Scalia said, “That’s a strong name!”
There were dozens of others standing in line for autographs and photographs. Justice Scalia was particularly solicitous this day. He was unusually patient standing for staged photographs.
Soon the presentation began. I was to introduce him and give him his award. He would then make his acceptance speech on a topic relating to legal writing. I had no idea what he’d say.
I began by remarking that chairing the selection committee was the best assignment I’d ever had. At the annual Scribes meeting in Las Vegas that spring, the Scribes president had appointed me to preside over the committee—a panel that, as it turned out, would never even meet. I asked the directors who they thought the greatest living legal writer was—someone in the tradition of Oliver Wendell Holmes, Learned Hand, or Robert H. Jackson. By acclamation, they chose Justice Antonin Scalia. I told them, “But wait a second, is there anybody else who should be considered for this award?” A few other names were suggested and considered, but the board agreed that Justice Scalia stood apart. My assignment was completed in less than five minutes.
Introducing Justice Scalia, I tried to give some perspective on his writing style and how it compares with other legal writing I’d encountered in more than 25 years of teaching and consulting in the field:
In his book Marble Palace, the scholar John P. Frank wrote about the United States Reports and said that that set of books constitutes a vast literary wasteland. And for the most part, it does. Certainly there are exceptions—mainly, John Marshall, Oliver Wendell Holmes, and Robert H. Jackson, who was probably the greatest writer ever to sit on the United States Supreme Court. But I think his equal is Justice Antonin Scalia, and so it’s great to be able to give him this lifetime achievement award. We’ve all benefited from the lucidity and the bold metaphors that he brings to his writing. He is like no other. And so Justice Scalia, if you’ll please come forward.
Justice Scalia was in particularly good form on this day, and the audience was especially warm. He began in low tones by saying: “I am very honored to receive this award. I happen to sit in the chair once occupied by Robert Jackson and by the second Justice Harlan, and I’m very proud of both of those predecessors. I share the judgment that Jackson was the best legal stylist of the 20th century.” After applause, he got a hearty laugh when he said: “Incidentally, I’m going to join the Society. I’m not going to just take your award!” Then he added: “I do care a lot about legal writing. I ought to belong to this organization!” That won him another hearty ovation.
But he wasn’t do
ne warming up the audience: “You ought to get a new name for this award. Lifetime Achievement Awards are best known at the annual Oscar ceremonies, where they are awarded to some old-time actor who never won an Oscar but should have, just for sheer persistence and endurance. [laughter] The awardee usually crosses the stage on a cane. I assume that your award has none of these connotations, and therefore I accept it with great pride. [laughter] But get a new name. [more laughter]”
Justice Scalia proceeded to make some interesting observations about legal writing, the first of which was that legal writing doesn’t really exist as a separate genre of writing. Legal writing, he said, is nonfiction prose, an “unglamorous category of writing” that requires its writers to handle the subject with almost as much mastery as a good writer in any other field, such as theology or economics. As an example, he said, “C. S. Lewis would have been a magnificent legal writer.” So would economists such as Ronald Coase and John Kenneth Galbraith, who, he said, wrote lucidly on the subject before the field sank into “esoteric regression analyses and mathematical formulae,” becoming cluttered and opaque.
“Oops,” Justice Scalia said, “I used the word ‘cluttered,’ which has set my esteemed coauthor Bryan Garner a-twitching.” Clutter is rampant in legal writing, he said, pointing to my campaign both to eliminate substantive (sentence-containing) footnotes and to “banish to footnotes the case citations that so disrupt the flow of legal writing.” The stuttering prose that results is almost unique to legal writing, he conceded, even though many fields require “constant appeal to authority” for their assertions. Almost no other field inserts them in the prose itself, but instead footnotes or endnotes keep the narrative flow unimpeded. “The only other type of writing coming to mind that is similarly afflicted,” he said, “is theological writing in a religion based upon revelation.” But even there, he added, “5 Kings 9” is more attractive than the typical legal citation, which can fill two or three lines before the text resumes.
He talked about his two years of teaching legal writing to first-year law students at the University of Virginia. It became immediately clear to him, he said, that what students lacked wasn’t the skill of legal writing but the skill of writing at all. He thought that it’s probably too late to undo this impairment during postgraduate studies. The best thing to wish for, he said, was to teach an appreciation for the vast difference between writing and good writing (that realization had come to some of his students as “an astounding revelation,” he said), and then to persuade them to dedicate the time and sweat it takes to master the skill.
Time and sweat. He emphasized that. He said he was put on the road to good writing as a freshman at Georgetown, when his English professor, a “damned hard grader” named P. A. Orr, gave writing assignments every weekend. In the beginning, the future Justice was receiving B-minuses—marks that provoked “many nervous hours” of writing and rewriting the Orr assignments. Justice Scalia said, “I am grateful to this day.”
“Finally . . . ,” he said as though wrapping up. But instead he decided to tuck in an extemporaneous anecdote, smiling during almost his entire delivery:
I was going to tell a story . . . It doesn’t have a whole lot to do with our subject, but it’s such a good story, so what the heck. I was teaching in Galway this summer. On one of my first days there, the Chief Justice of Ireland gave me a book about practice in Cork, in what was called the Munster Circuit in the early years of the 20th century. It’s a delightful book. One of the stories it tells is that it’s good practice to use good, hard, brief Anglo-Saxon words instead of Latinate puffery. The story was told of this one barrister in Ireland who was a very boastful fellow. He made a bet that he could argue an entire case using only one-syllable words. One of the other barristers readily took the bet because he knew, of course, that you always begin your argument to the jury saying, “Gentlemen of the jury.” So he thought he had a sure winner.
So this barrister gets up and says, “Now you twelve men good and true. . . .” [laughter] It’s irrelevant to everything else I was saying. [laughter]
Justice Scalia next addressed a point of great interest to those who pursue the art of writing: Is high intelligence a prerequisite for great legal writing? It’s not enough by itself, he answered. He recalled making law review at Harvard and being awestruck at the raw brainpower of his new colleagues. But he wasn’t as impressed with their writing skills. He was convinced that he could “write rings around” many others who were much smarter than he was. So he concluded that intelligence alone wasn’t the answer. But was it necessary to being a prose stylist? He didn’t think so, he said, though it’s necessary to handle the substantive content legal writers must deal with. Such things as good grammar and a knowledge of Latin can be learned, he said. “The less-than-brilliant mind may take longer to master those elements,” he said, “but it’s doable.”
One thing probably can’t be taught, he continued, and that has nothing to do with having a high IQ: genius. “There is no reason to believe that Mozart was a genius in the ordinary sense of being brainy,” he said. “He was a musical genius.”
Then he came to the central point—a point not often publicly associated with Justice Scalia: empathy. He expressed the necessity that writers have empathy as pithily, I believe, as I’ve ever heard anyone do. Writing genius, he said, consists in “the ability to place oneself in the shoes of one’s audience; to assume only what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling.”
On the other hand, he concluded, there is one reliable connection between good writing and intellect: “A careless, sloppy writer has a careless, sloppy mind.”
He thanked the organization for its award and, amid sustained applause, sat back down beside me.
“Great job, Nino!”
“You liked it?”
“It was spoken like a snoot of the first order.”
No More Infinite Jest
A little over a month later, on September 12, 2008, David Foster Wallace—the self-deprecating literary hero to more than one generation; the master of clear, distinctive, hyperintelligent, high-voltage prose; and the friend who had encouraged me to pursue an interview with the feistiest word-lover on the Supreme Court of the United States—committed suicide. The literary world mourned an incomparable mind; I mourned an irreplaceable friend.
The next day, I called Justice Scalia.
“Nino, did you hear the news?”
“About David? Yes. Very sad. Did you suspect anything?”
“No, not really. He’d gone silent for a while.”
“It’s such a shame.”
“You know, he’s the one who brought us together.”
“He did?”
“He encouraged me to interview you. He knew you were a snoot.”
“He was right about that.”
“And then you were drawn to me more when you knew David’s long essay about snoots was really a review of my usage book.”
“That’s right. You know, you’re right!”
“So he’s really responsible for our partnership.”
“I hadn’t thought of that, but I’m sure that’s right. I liked him. He was an excellent writer, and he seemed like a good man. If you talk to his parents, please send my condolences. How did he die?”
“Apparently he hanged himself,” I said falteringly. “I can’t believe it.”
“Did you know he was suffering from depression?”
“I knew he had in the past, but he seemed upbeat when I last saw him. We spent a long evening together two years ago. Damn.”
“There’s nothing you could have done, Bryan.”
“I could have been a better friend. I shouldn’t have let the whole evening be about my impending divorce. We should have talked more about him.”
“Don’t beat yourself up,” said Justice Scalia. “You had no idea. When someone commits suicide, everybody close to
the person wants to blame himself. Don’t do that. No good comes from it.”
I said, “In terms of our correspondence, he just went silent over the past year. I thought I’d struck a wrong nerve or something.” I was suppressing audible sobs.
“No, he was surely descending into depression. It’s all very sad, Bryan. You were a good friend. I’m glad you had me meet him. I thought he was delightful. I’m sorry I didn’t get to know him better. You have my condolences, Bryan, as his friend.”
I was so choked up I could barely speak. “Thank you, Nino.”
“You take care, Bryan. I’ll see you soon. You okay?”
“I’m okay, Nino,” I said, with halting speech. “Lift a glass tonight in memory of David.”
“I will, Bryan. You, too.”
* * *
16. See Kungys v. United States, 485 U.S. 759, 769 (1988) (“The term ‘material’ in § 1451(a) is not a hapax legomenon.”).
17. Jess Bravin, “How David Foster Wallace Prompted a Scalia Book,” The Wall Street Journal, 23 July 2012, https://blogs.wsj.com/washwire/2012/07/23/how-david-foster-wallace-prompted-a-scalia-book/.
18. Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 27 (2008).
19. Tony Mauro, “Interviews of United States Supreme Court Justices,” Legal Times, 20 March 2008, at 1. To watch the video versions, go to http://www.lawprose.org/bryan-garner/garners-interviews/supreme-court-interviews/.
20. Adam Liptak, “Keep the Briefs Brief, Literary Justices Advise,” New York Times, 21 May 2011, at A1, A12. For the full transcriptions, see Scribes Journal of Legal Writing, vol. 13 (2010).
21. See Garner, “War of the Words,” American Lawyer, Feb. 2009, at 56 (recounting this anecdote).
22. Cortez v. McCauley, 478 F.3d 1108, 1139 (10th Cir. 2007) (Gorsuch J. concurring in part & dissenting in part).
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