Most of our readings were done in a single take. His reading voice was emphatic, strong, and deliberate. We tried to read at about the same pace. The process convinced us that we had done well with the prose.
At the very end, I suggested that we record a bonus track in which we’d extemporaneously discuss what we had just done. Here’s part of it:
SCALIA:
So what do you want to talk about?
GARNER:
Well, it was kind of fun reading the book, wasn’t it?
SCALIA:
[laughs] Well, you know, I think that says something about the writing of the book. I don’t know what other people do, and my wife often makes fun of me for this. I often read aloud, beneath my breath, a passage or a paragraph that I’ve just written. After all, these are words, and saying them aloud sometimes points out whether they’re put together clumsily or gracefully. It’s probably a good practice to read stuff aloud. If this audiobook sounds good, I think that’s because the book itself was written well. And if it sounds bad, the reason might be that it wasn’t written well.
GARNER:
Well, you remember when we wrote the book. After we had a draft done, and we would add a paragraph, frequently we would deliver it orally.
SCALIA:
You’re absolutely right. You’re absolutely right.
GARNER:
And the listeners should probably know that it wasn’t a matter of my reading Garner passages and your reading Scalia passages. Except for the signed debates, there’s no such thing as a Garner passage or a Scalia passage.
SCALIA:
Right. Except for that, I frankly, with a few exceptions, cannot recognize which ones I wrote the initial draft of and which ones you wrote the initial draft of.
GARNER:
And we both so heavily revised the book that every sentence was truly coauthored, wouldn’t you say?
SCALIA:
I would say that.
GARNER:
My own calculation is that you wrote about 52% of the book, and I wrote about 48%.
SCALIA:
I can’t cut it that fine. But I do think it was about 50–50. I can’t slice it any thinner than that.
GARNER:
Now, I’m just curious. We love our little debates. And we’ve given our debates live in New York, Washington, L.A., and Dallas. And we really enjoy having those debates. But I’m just curious. Do you really not have any misgivings about those points you’ve taken against me?
SCALIA:
Absolutely not. [laughs] And, when we put it to a vote at those sessions, who wins? Who wins on all the points? Tell the audience who wins on all the points!
GARNER:
You win on contractions. You always win on contractions. It just amazes me how timid the audiences are.
SCALIA:
[sarcastically] Yeah, yeah.
GARNER:
You win on no substantive footnotes. But our differences are very slight on that. You do prevail, much to my amazement, on sexist language—even though we made the book gender-neutral, and you were very acquiescent about putting up with me. I think you were partly tolerant because Justice Ginsburg has done that with some of your opinions, right?
SCALIA:
No, I think I was tolerant because I know how punitive especially law schools can be for failure to observe the Code of Unisex. I think that’s the main reason I receded. In other words, I think your position, while intellectually abominable, is commercially reasonable.
GARNER:
And then on this question of citations in footnotes, it always surprises you what the votes are. I think the votes in almost every forum have been right down the middle, 50–50.
SCALIA:
No, I don’t think that’s true. I’ve won in every case. Now on that issue it was closer than on the other ones. Come on! Come on!
GARNER:
I think you conceded at the Kennedy Center it was 50–50.
SCALIA:
No I didn’t! I did not at all. [laughs]
GARNER:
Well, I think standards are going to be changing on that point. But you have to be bothered by having 50% of the lawyer groups, having heard that question vented, think footnoted citations are the better way.
SCALIA:
I think when they will come to consider it more thoroughly they will understand that we lawyers have gotten very used to just having these citations in the middle of the sentence. Well, not in the middle of the sentence, but in the middle of the paragraph anyway, and go on to the sentence. It is very clumsy to have to keep looking down. And it doesn’t solve that keep-looking-down problem to try to put all the essential information into the text. [impatiently] Anyway, we’re just redoing the argument.
GARNER:
I do want to say one other thing, though, and that is . . .
SCALIA:
Yeah, yeah, yeah.
GARNER:
One of the great things about collaborating with you was that our literary styles really melded perfectly—seamlessly—wouldn’t you say?
SCALIA:
I think so, and that is partly because, as you informed me, early on in our relationship, we are both snoots.
GARNER:
Snoots, yeah.
SCALIA:
Snoots. Tell them.
GARNER:
Syntax nudniks of our time [David Foster Wallace’s term].
SCALIA:
I thought it was nerds.
GARNER:
Or syntax nerds.
SCALIA:
Yeah, there are some people who care about pronouncing things correctly, and using imply instead of infer [when that’s appropriate], saying nuclear instead of /noo-kyuh-luhr/, and all those little technicalities which a lot of people couldn’t be bothered less about. But you and I care about that stuff, right?
GARNER:
Why don’t more lawyers care about that?
SCALIA:
I don’t know. I don’t know. Anybody whose business is words ought to. But many do, I think, many do.
GARNER:
Well, this has been a lot of fun.
SCALIA:
It has been a very enjoyable collaboration. I will put it that way.
GARNER:
And we’re going to do it again.
SCALIA:
I hope we will. [laughs]
Night at the Opera
The night we finished recording the audiobook, Justice Scalia, Karolyne, and I had dinner together.
“Guess what I’ll be doing tomorrow,” Justice Scalia said.
“What?” I asked.
“Ruth [Justice Ginsburg] and I are going to be supernumeraries in Ariadne auf Naxos—the Strauss opera—at the Kennedy Center. You know what a supernumerary is?”
“I know the word,” I said. “As an adjective, it means ‘superfluous’ or ‘surplus.’ ”
“It’s an operatic term. You don’t know it, do you?”
“I confess I don’t. Is it a kind of theatrical extra?”
“You’ve got it! Ruth and I are going to be onstage for much of the opera as people in the crowd. There are lots of crowd scenes.”
“Have you rehearsed?”
“No. It doesn’t require that. We just sit there as the performers interact. We’ll be in modern dress—our own clothes. We have a few stage directions to follow.”
“That’s great.”
“Can we get tickets and come see you?” Karolyne asked.
“I’m sure you can,” he said.
“Good,” she said. “Let me see if I can book them right now online. Do you mind?” She got out her iPhone and within a couple of minutes had booked us some good seats in the orchestra. Justice Scalia was amazed that it could all be done so quickly from a handheld device.
“You need to teach me how to do that!”
“I wish she’d teach me,” I said. “People of a certain age struggle with these things.”
“You’re right abou
t that. Listen, you’ll need to look for Maureen in the audience. She’ll be sitting with Marty Ginsburg.”
And so we did. The next evening, we texted Mrs. Scalia’s cellphone to tell her where we were, and Karolyne and I had a good short visit with her and Marty Ginsburg—both of whom were excited for their spouses. During the opera, the actors interacted with both Justices quite a bit. There was an opera-within-the-opera, rather like Shakespeare’s play-within-a-play in Hamlet. The actress playing Zerbinetta, a feisty coquette, came and sat on Justice Scalia’s lap and embraced him—much to the crowd’s delight. And a couple of male actors were particularly flirtatious with Justice Ginsburg. The Justices, doubtless a major attraction for much of the audience, enjoyed sitting feet away from virtuoso opera performers. They had the best seats in the house.
Afterward, we waited in the foyer of the Kennedy Center with Maureen Scalia and Marty Ginsburg while their spouses were backstage taking off their makeup. We had hearty congratulations for them as they walked out together. Never before had I seen the two Justices so ebullient.
An Exuberant Phone Call
Not long after, as I was sitting in my office in Dallas, I received a phone call from Justice Scalia.
“Bryan: People are listening. People are really listening!” He sounded giddy.
“What do you mean?”
“You know how we say, in Making Your Case, not to use up all your time at oral argument but to sit down early if there’s nothing left that’s useful to say?”32
“Yes.”
“It happened this morning in our Court. Both sides did it! The Justices couldn’t believe it. We got out 20 minutes early.”
“That’s amazing!”
“I haven’t seen it in nearly 30 years on the bench—and certainly not in the 25 years I’ve been here at the Court.”
“Wow.”
“They got it from our book, Bryan.”
“Of course they did!”
“They got it from our book. They’re paying attention. The petitioners did it, and the Justices all glanced at each other. Then the respondents did it, and we were stunned. We were all buzzing about it afterward in the robing room.”
“Did your colleagues acknowledge that it was because of our book?”
“Well, no.”
“Did you tell them?”
“Of course not. I didn’t want to claim credit. It would have been immodest. But you and I know. That’s why the first thing I did in getting back here to chambers was call you. You and I know.”
“Yes, we do, Nino. Congratulations.”
* * *
24. Antonin Scalia, Symposium at the Juilliard School (2005).
25. Bryan A. Garner, A Dictionary of Modern American Usage xiii (1998).
26. Antonin Scalia, College of William & Mary Commencement Speech (1996).
27. Garner on Language and Writing xxxiv (2009).
28. Antonin Scalia, as reported in Newsweek (1986).
29. Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges xxiv (2008).
30. The joint interview can be seen at http://www.youtube.com/watch?v=oNcCQT_x4NU.
31. My interview with Justice Ginsburg can be seen at http://www.lawprose.org/bryan-garner/garners-interviews/supreme-court-interviews/justice-ruth-bader-ginsburg-supreme-court-of-the-united-states-part-1/.
32. Antonin Scalia & Bryan A. Garner, Making Your Case 173–74 (2008) (“When you have time left, but nothing else useful to say, conclude effectively and gracefully.”).
5
Reading Law: Part I
(2009–2010)
Even as we were putting the finishing touches on Making Your Case back in 2008, I had begun to realize how much I’d soon miss the side-by-side work at Justice Scalia’s trestle table and his computer monitor.
“Aren’t you going to miss this?” I asked him one day as we were sitting in his chambers.
“Are you serious?” he replied. “This is hard work—harder than I ever thought it would be.”
“Elmore Leonard once said that writing is the hardest work there is that doesn’t involve heavy lifting.”
“That’s exactly right.”
“But look what we’ve created. From nothing!”
“It’s a good book,” he said. “We can be proud of this.”
“What we really need to do is a second book, on textualism. Something like a playbook for litigators—how to make a textual argument. And for judges—how to evaluate statutes. No such thing exists.”
“I’ve already written all about that in my opinions.”
“True. But I’m thinking of something more systematic.”
“Lookit, if this book on advocacy is hard, the one you’re suggesting would be much harder.”
“But who else could do it? You’re the greatest living expositor of textualism, and I’m supposed to be the great expert on legal language.”
“Don’t undersell yourself—the English language generally.”
“We’re two modest guys, aren’t we?” I said with a smile.
“We’re a lot alike.”
“Some egos are deserved,” I said. “But nobody who really knows you could say you’re full of yourself.”
“I hope not. You know, I’ve resolved to be a better person. I went to a men’s retreat not long ago—a Catholic retreat. I do that every few years. You ought to try it sometime.”
“What’s involved?” I asked.
“Fellowship. Contemplation. The study of Scripture. That might not be for you. Anyway, I’ve resolved to be a better person—to be a kinder person, and more patient with people. Never to take Maureen for granted—or my children. I want to be kinder to my colleagues. You ever think about that kind of thing?”
“All the time, Nino. I may not be a churchgoer, but I’m a spiritual person—in an ethical sense. I just don’t go for the mysticism.”
“Ah, but that’s where greater truths lie, if you’re a believer. Anyway, when do you have time for quiet contemplation?”
“On airplanes, in hotels. I have my noise-canceling headphones. I sit back and listen to Mahler or Janáček and shut out the rest of the world. So I guess it’s not entirely quiet contemplation.”
“But that’s good. You like classical music?”
“Of course. As you know, I come from a family of professional musicians.”
“But somehow you became a writer.”
“Yes, I’m a writer. So are you. And that’s why I want to do a second book with you, on your greatest intellectual love: legal interpretation.”
“I’ve done that already in A Matter of Interpretation.”
“You skimmed the surface there. It’s an important book, but it’s really just an essay followed by other people’s essays. Think of all the canons of construction that you’ve never written about.”
“Too hard. That would take a major treatise.”
“You’d learn a lot from doing it.”
“What do you mean?”
“I know you’re worried about the amount of work. But you’d discover things that you don’t know right now. That always happens when you write.”
“True.”
“Think about how much more clearly you think about advocacy now that we’ve written Making Your Case.”
“That’s true. You really think I’d learn things about textualism?”
“Sure. You’d become even better at it. We would probably discover things that nobody has ever written about.”
“Like what?”
“The exceptions to the ejusdem generis canon. Do you know what they are, or how many there are?”
“No idea. Nobody’s written about that?”
“People have written around it. But nobody has done it as systematically or with as much acuity as we could. Are you sure I can’t convince you?”
“Let me think about it. Let me talk to Maureen. I’m kind of doubtful about a second book.”
The week after this conversation, Justice Scalia call
ed me—it was June 2008—to say he’d decided against the second book. He simply had too much to do already, given his day job. He was tired of extracurricular writing. Disappointed as I was, I said I understood.
A Change of Heart
Although Justice Scalia and I were doing a fair number of speaking events together in late 2008 and early 2009, we weren’t seeing each other nearly as often as we had during the two previous years, when we were writing together. We had dinner together only a handful of times, and we’d go several weeks without talking at all.
During the first week of March 2009, as I was working in my office, my assistant buzzed to say that Justice Scalia was on line two.
“Hello. Nino?”
“No, it’s Angela. Let me put the Justice on the line.” There was a 15-second pause.
Nino and Me Page 16