“Bryan, my friend!”
“How are you, Nino?”
“I miss you, Bryan. I’ve really missed you.”
“Well, I miss you, too, Nino. You know, there’s a cure for that. Let’s start the second book.”33
He chuckled. “Okay. Let’s do it,” he said.
“Terrific,” I said, fairly stunned at this reversal of fortune, given what he had told me a few months before.
“You know I loved working on our book. I think we could do it again.”
“Well, I agree. It is great working together,” I told him. I was having to collect my thoughts quickly. “Now this second book is going to be more ambitious, and it’ll take time.”
“I realize that. But I really care about interpretation, and I think we can contribute to the field.”
“I’m sure we can,” I said. “As with the first book, it’ll be something only the two of us could write. This is great news.”
“How do we start?”
I had hoped for this moment for a while, so I already had a semblance of an outline in hand. “I have an outline,” I said. “Let me pull it together and send it to you, along with a sample section. I won’t be up in D.C. until June.”
“What’s the date in June? I’ll get it on my calendar. You still traveling the country?”
“Yes. You just happened to catch me on my one day in the office this week. Okay, it’s June 15. We could work that day and then have dinner afterward.”
“Let me see. . . . Sure. Tosca?”
“That’d be great. Glad we’re going to be working together again.”
“Me, too,” he said. “Makes me happy.”
A few days later, I sent him the outline and a first draft of the ejusdem generis section. The Latin name (meaning “of the same kind”) intimidates people, but it’s a simple idea. It’s a doctrine of legal interpretation saying that broad words at the end of a list are necessarily narrowed by the types of things listed—“turkeys, roosters, hens, doves, quail, and other animals,” for example. Despite its normally broad meaning, the word animals in that list might well be limited to birds—because only birds appear in the preceding list.
I sent a six-page draft citing about 30 cases and many scholarly authorities. So we had a start that he could elaborate on. I had somehow forgotten, I suppose, that Justice Scalia didn’t have the habit of opening e-mail attachments—or perhaps I figured that he’d acquired it. In any event, he didn’t actually see my draft until late August. He liked it, and he added a good deal to it.
Meanwhile, I started working with West to get a contract in place for Reading Law. When I called Justice Scalia to discuss the terms, he insisted that royalties should be split 50–50 down the line. “It should have been that way on the first book,” he said. “You worked as hard as I did.”
“But that’s not the deal we made.”
“Well, you’re very generous. I think it should have been 50% to you.”
So that’s what it became for the second book. The contract had been signed by all three parties by April 3, 2009.
The Bard Hath a Way
Later that month, we started working hard on our table of contents, which consisted of complete propositions such as, “General terms are to be given their general meaning,” or “The text must be construed as a whole,” or “A statute is not repealed by nonuse or desuetude [a long period of disuse].” I had collected nearly 200 of these propositions, and we were organizing and reorganizing them, as well as cutting many of them that we considered unsound for one reason or another. As we worked through them, we were steeped in books that had been conveniently sent over by the Supreme Court Library so that we could verify citations against original sources.
At one point, Angela interrupted us as we were hard at work. “Justice,” she said from the doorway, “Jess Bravin of the Wall Street Journal is on the line. He’d like a comment from you about the authorship of Shakespeare’s plays.”
“I’ll pick up in a moment,” said Justice Scalia.
“Nino,” I said, “you don’t believe in one of those crackpot theories that William Shakespeare didn’t write the plays, do you?”
“It’s not a crackpot theory at all. I believe there’s a good possibility that it’s this man de Vere.”
“Edward de Vere, the Earl of Oxford?” I asked.
“Yes,” he said.
“That’s so silly.”
“Well, let me take this call, and then we’ll discuss it,” he said. He then got on the line with Bravin, a most capable journalist, and told him he had real doubts about whether the actor from Stratford-upon-Avon could have written the plays attributed to Shakespeare. He said that the intricate knowledge of the internal workings of the royal courts of Europe made it highly unlikely that someone who, for all we know, never left England and never went to Oxford or Cambridge could have composed the plays. It must have been someone with a good knowledge of the intrigues of courtiers.
When he got off the line, I ribbed him a little. “Nino, you’re just spreading ill-founded rumors in the popular mind. There’s zero evidence in favor of de Vere.” Eyebrows raised, he took off his glasses and listened intently. I continued: “Nobody doubted Shakespeare’s authorship until a century after his death. Even his chief rival, Ben Jonson, paid homage to the man as a great playwright. Many of the plays were published in his lifetime. If he hadn’t written them, there would have been at least the whiff of contemporaneous scandal.”
“I stand by what I said.” He rubbed his lower lip with his right thumb.
“What if someone said that it’s completely implausible that Scalia’s opinions could have been authored by an Italian kid who grew up in a tenement in Queens and had absolutely no knowledge of the inner workings of legislatures?”
“Ha! Well, I suppose they’d have a point!”
“The point is,” I said, “that reading makes all the difference. You and I can know about Socrates or Caesar or Chaucer because we can read. Shakespeare had Plutarch and other historians as his sources, but then he understood human nature more completely perhaps than any other writer ever has. De Vere was a mediocrity and an irresponsible popinjay. He died, if I’m not mistaken, in 1604—and more than a quarter of the plays were written after that.”
“A popinjay? Lookit, I haven’t studied the point closely, but many people who have think it was de Vere.”
“And they’re all dilettantes, Nino. The experts who’ve devoted their careers to Shakespeare studies—and I mean real experts—think it’s not even a close question. We know more about Shakespeare’s life than any other Elizabethan playwright except Ben Jonson—a lot more than we know about Christopher Marlowe.”
“Really?”
“Sure. We even know what the curriculum was at the Stratford grammar school where he studied. We know where he picked up his not insignificant knowledge of Latin.”
“How do you know this?”
“I started out writing about Shakespearean linguistics. I own more than 20 biographies of Shakespeare.”
“Have you read them?”
“Of course not! I use them—I don’t read them. The best is by Samuel Schoenbaum. It’s called Shakespeare’s Lives. I have read that one, and it’s worth reading.”
“These Shakespeareans have a vested interest in perpetuating the myth that little Willie Shakespeare from Stratford wrote those plays!”
“No they don’t! Most Shakespeareans are just literary critics. They’re glad we have the plays, regardless of the source. But they have a strong enough historical bent that they detest seeing this literary hoax foisted on the popular mind by amateurs when there’s nothing to support it.”
“John Paul [Justice Stevens] thinks it was de Vere.”
“Well, Nino, I wish Justices wouldn’t opine on literary and historical matters like this without looking into them closely.”
“Okay, Bryan, you’ve convinced me to shut up about it unless I do more homework. But I think I’ve already giv
en him a good quote!” He smiled mischievously.
We went on about our work.
The Writing Grind
For this second book, our working mode was quite different from what we had done before. We didn’t try writing the same sections at the same time, as we had for Making Your Case. Instead, we wrote about whatever we felt moved to write about at the time. I did the initial drafts of the linguistically oriented sections, and he did most of the ones involving the types of legal doctrines that commonly arise in the Supreme Court.
As with our first book, we began by assembling a table of contents containing complete sentences, or full propositions. That way, each section became essentially a short essay in support of the blackletter proposition, just as we had done in Making Your Case. We agreed that the core principle of the book was that legal instruments should be given a “fair reading”: an interpretation that a competent, sensible user of the language would ascribe to the words used.
I didn’t receive any drafts from Justice Scalia until late July, when he wrote: “Bryan: I have started in earnest on the book, and wanted you to peruse [by which he meant “scrutinize”—the traditional sense] my first few jottings, to be sure they are in form along the lines you approve. Let me know what you think. Also let me know what other sections you want me to work on.” He ended his e-mail with, “Long time no see. Nino.” This despite our having spent two days together at the State Bar of Texas meeting less than a month before.
By the end of August, we were both going full throttle. I thought we were approaching a full rough draft. But Justice Scalia thought at most we were nearing a full rough draft of only the opening sections. His assessment was closer to the mark.
The work on Reading Law was much slower and more painstaking than it had been on Making Your Case. We wrote the book over a three-year period, and the research was far more labor-intensive.
On the many days when we’d work together, we’d go through a routine that became comically predictable. I’d show up at his chambers with a few problems for us to work through, usually based on specific criticisms of Justice Scalia I’d found in law reviews or books. Typically, Justice Scalia would try to deflect and say he’d like to ignore the criticism, but I’d persist and say I thought we should address the point to clear up any perceived weaknesses. Again he’d demur, and again I’d insist. I’d finally get him writing, if only reluctantly.
For example, that’s how the refutation of Stanley Fish (arguing that there is no “textualist” method) made its way into the published book; and that of Robert Benson (arguing that there’s no such thing as “following the law”); and that of Mark Tushnet (arguing that there’s a constitution outside the written Constitution); and that of J. Harvie Wilkinson (arguing that judges should have no theory of interpretation). Those passages were written in separate sessions between 2009 and 2011, and Justice Scalia typed most of them at his computer. They were hard passages to write, and sometimes just two or three paragraphs would occupy us for an entire afternoon.
Because we cited so many Supreme Court cases, I thought it might be useful to identify the writing judge for each majority opinion. So I’d add “per Frankfurter, J.” or “per Warren, C. J.” after each citation. But my coauthor phoned me to object to this practice.
“Bryan, it’s well known in Supreme Court circles that the author of the majority opinion is never to be called out.”
“I know that, Nino, but we have a special purpose here. Readers need to know that we’re citing lots of judges of different backgrounds. We’re not citing just the conservative bloc of the Court. We’re certainly not citing just Scalia opinions. We cite Thurgood Marshall positively, and Earl Warren, and John Paul Stevens. We need people to see that.”
“You have a point.”
“If it’s just a case name, people might suspect that you wrote every one of the recent opinions we cite positively, when that’s not true at all.”
“Okay, let me think further on it.”
“Believe me, Nino, it’ll make our text harder for our intellectual enemies to undercut.”
“Then leave it in for now.”
We left it in for good.
But much potentially valuable material was left on the proverbial cutting-room floor. In May 2010, I had the idea of analogizing statutory interpretation to musical interpretation—hardly a novel idea in itself. But I recalled the free-form cadenza typical of 18th-century compositions, and I thought this idea might be novel. Justice Scalia liked the opener. Here’s how it read:
Introduction
Imagine if every legal instrument, toward what should be the end, trailed off with “and so on and so forth.” Or perhaps any piece of writing, for that matter. Readers expecting coherent ideas would be baffled and disappointed.
But in music, there was a mostly 18th-century tradition of having composers include cadenzas, which were musical flourishes left to a soloist’s imaginative improvisation, giving the “impression that the solo performer, worked up to an artistic frenzy, had burst away from his companions [the accompanists] to indulge himself in the unrestrained expression of his enthusiasm.”* In Jean-Pierre Rampal’s most famous rendition of Mozart’s flute concerto in G major,** for example, Rampal fills 85 seconds at the end of the first movement with supposedly extemporaneous playing. That’s the proper way to play the piece. In fact, the most famous compositions requiring cadenzas have had various renditions written for them. By the dawn of the 19th century, though, most composers came to feel “that if anyone was to prepare beforehand such material for insertion in their music, it might as well be themselves.”*** And in modern times it has not been considered a denigration of classical musicians to ask that they faithfully play the music set before them.
In legal instruments, there are no cadenzas. We don’t have statutes or regulations or wills or contracts that conclude amorphously with the old King of Siam’s favorite phrase: “Et cetera, et cetera, et cetera!” The notations on the page are expected to convey a determinate meaning. At least that’s how it ought to be.
But within the common-law tradition, “idea-cadenzas” have abounded. Originally, they were necessary in the days when statutes were the exception. But today things have changed: statutes are the rule. But some judges have continued to want to improvise freely as interpreters of legal instruments. Mind you, it’s not that the drafters mark “cadenza,” with a blank, the way Mozart and others sometimes did; rather, some judges have simply decided to insert flourishes where an advocate for one party to a dispute has entreated them to do so.
This brings us to the single greatest challenge to sound legal interpretation: self-restraint. It’s the refusal to usurp power that is available for usurpation. Because judges are the final interpreters of legal instruments, there is no constraint placed on “idea-cadenzas” except what the judges impose on themselves. Hence this book is largely about self-restraint—how to derive meaning from authoritative legal texts without undue embellishment.
* Percy A. Scholes, The Oxford Companion to Music 130 (2d ed. 1939).
** K313.
*** Id.
We read this aloud to each other one day in his chambers, trading paragraphs as I sat on his couch and he sat behind his desk. We gave the passage a “dramatic reading,” much as if we were actors. We liked the passage. It appealed to our love of classical music; it provided an apt analogy; it was easy to follow. Afterward, from my iPod, I played a recording of Jean-Pierre Rampal playing the concerto, explaining that I’d grown up hearing my father, a university flute professor, play the piece. Justice Scalia knew well the convention of musical cadenzas, and he liked the comparison as well as I did.
It wasn’t until after my wedding that I realized we wouldn’t be able to use the passage after all. Cutting it was hard for us both.
* * *
33. A close variant of this bit of the dialogue was quoted in Alex Carp, “Writing with Antonin Scalia, Grammar Nerd,” The New Yorker, 16 July 2012, http://www.newyorker.
com/news/news-desk/writing-with-antonin-scalia-grammar-nerd.
6
The Wedding
(2010)
In March 2009, Karolyne and I had set a date to be married—a year and a half later. That would give her family in Hong Kong time to plan. Soon after, we asked Justice Scalia whether he’d be willing to officiate. “I’d be honored! Of course I will!”
By January 2010, we had picked a wedding site near Karolyne’s hometown of North Attleboro, Massachusetts. It would be at the Rosecliff Mansion in Newport, Rhode Island, on August 8. As a young girl, Karolyne had gone on field trips to Newport, and she had always had fond memories of that beautiful place.
Justice Scalia warned us that we must ensure that he’d be properly credentialed to perform a wedding in Rhode Island. He hadn’t done many weddings, and he didn’t want to embarrass anyone by performing a wedding without following the proper formalities. I promised to find out more about what he’d need to do to conduct the ceremony in Rhode Island.
But the news was slow in coming. Although we had friends in state government who were “handling” the matter, there was essentially no word for months. In mid-May, when we sat down for lunch at Plume, the restaurant in the Jefferson Hotel, Justice Scalia was greatly concerned about having the proper credentials.
He also wanted to know what wedding service we’d be using. “How about the Catholic service?” he asked.
“But you know we’re not Catholics,” I said. “I grew up Episcopalian, and Karolyne is nondenominational. How about the Episcopal service?”
“Have a look at the Catholic service. I think you’ll like it.”
By mid-July, I had sent him our proposed service, based on the Episcopal Prayer Book. Given what he’d said about the Catholic service, I assumed that he’d be happy with a good dose of religion in the ceremony. And I knew Karolyne and her family would appreciate that.
Nino and Me Page 17