Nino and Me

by Bryan A. Garner

  Meanwhile, Karolyne and I kept hearing that we were in the clear for Justice Scalia’s performing the ceremony—but we couldn’t get any specifics apart from vague assurances. This caused us as well as Justice Scalia some consternation. Just six days before the wedding, he wrote to me: “Are you sure that I have authority under Rhode Island law to conduct the wedding? If not, we must clear that up at once.”

  We pressed our Rhode Island contact, who told us that we must have a special bill enacted by the Rhode Island Legislature authorizing Justice Scalia to conduct the ceremony. Only one day was left in which this could be accomplished, but our contact assured us that they would get it done. In the end, we learned that there was actually debate on the floor of the legislature about the matter. A Republican (!) legislator had stood up and said, “We don’t need an out-of-state judge coming in to Rhode Island to perform a wedding! We have plenty of able judges in this State.” Fortunately, his opposition was summarily squelched.

  Meanwhile, just as the bill was being voted on, I received an e-mail from Justice Scalia: “No reply regarding my authorization under Rhode Island law. Should I start worrying? Nino.”

  We were all relieved when we got news that the legislative resolution had passed—only five days before the ceremony.

  Then Justice Scalia raised his own objection in an e-mail: “Your proposed wedding ceremony puts me in a terrible position. You have to eliminate from the ceremony (or substitute for me) all parts in which I offer a prayer, invoke God or the Trinity, bless the rings, or do anything else that is priest-like. If you wanted a religious ceremony you should have gotten a clergyperson, not a goddam judge.”

  Then he added, “I hate to bother you at such a busy time.”

  I quickly removed all the religious references. I had been mistaken in assuming that he wanted them in the first place. In any event, we were to have a Chinese clergyman conduct the religious part of the rite in Mandarin—an acknowledgment of Karolyne’s Chinese heritage and for her non-English-speaking family. Justice Scalia was glad to learn of that.

  In the middle of the afternoon the day before the wedding, Justice Scalia arrived at the Westin Hotel in Providence, where the wedding party, family, and guests were staying. I met him at the front entrance when the U.S. marshals drove up. He wanted to go to his suite, settle in, and take a nap before the rehearsal dinner. We agreed to meet in his room at 5:30 for a drink (Campari and soda, of course), and then head off to the rehearsal just downstairs in the hotel. But on the way up to his room, I casually mentioned that I had a passage or two for him to think about for Reading Law. We ended up spending an hour on those before he took a short nap.

  As usual, the marshals had an adjoining room. I introduced myself to each of them, learned their names, and offered my phone number. They already had it. I encouraged them to call if they needed anything at all.

  The Wedding Rehearsal

  At 6 o’clock that night, the wedding planners walked us through the ceremony. We were all dressed casually, the men with jackets but no ties. Justice Scalia greeted my father and my brothers. He also greeted Karolyne’s mother, brother, and the rest of the wedding party. Everyone was excited and honored that he was on hand.

  I took Justice Scalia aside to chat a little. “Have you performed many weddings?”

  “Not many. About four—usually for one of my clerks in chambers. Not like this. The reason I was so nervous about the authority is that I didn’t get it in Wisconsin, and so I had to have a shadow judge.”

  “What?”

  “My son Christopher’s dissertation supervisor was getting married when we were in Wisconsin for Christopher’s graduation, and they wanted me. But I had no authority. So the chief justice of Wisconsin had to do the actual pronouncement of husband and wife at the end of the ceremony. Funny—and mildly embarrassing.”

  “Glad we took care of it here, just in the nick of time.”

  “Thank you for that!”

  I explained that Karolyne’s mother, Sandra Cheng, would be hosting our rehearsal dinner at China Inn, an excellent restaurant in Pawtucket. It was owned by a close family friend, Louis Yip, who would be standing in for Karolyne’s late father at the wedding. Many of the guests spoke English as a second or third language, and a few spoke only Chinese. So Sandra, an accomplished translator (in addition to her day job as a hospital administrator), would be providing some translations.

  “It won’t be a long dinner, will it?” Justice Scalia asked.

  “Not long and drawn out,” I said.

  “I have cert petitions to work on.”

  “It shouldn’t be too long.”

  “How far is it?”

  “About ten minutes away.”

  “You want to come with me?”

  “Sure. Karolyne and I will ride with you and the marshals.”

  “Good.”

  About 80 people were invited to the dinner—half the wedding attendees. At the entrance to the restaurant, we met a middle-aged couple from Providence. The husband was eager to meet Justice Scalia.

  “Judge, may I say what a true honor and privilege it is to meet you,” the husband said.

  “Thank you,” Justice Scalia said.

  Then the wife chimed in: “We donated to your campaign in the last election.” There was an awkward silence. Her husband smiled uncertainly. Then she added, “Didn’t you run for office in Providence?”

  Justice Scalia just chuckled and smiled.

  “No,” I said, “he’s a Justice on the Supreme Court of the United States.”

  “Well, even then,” she continued, “I’m sure we donated to your campaign.”

  “Thank you for your support!” said Justice Scalia. “Well done.”

  And we walked in.

  Friends from all over the country had converged on Providence for the wedding the next day in Newport. Most of them were lawyers, and all of them came by our table to greet Karolyne and me and of course to meet Justice Scalia. As people approached, I’d give him a quick background note to cue him for any remark he’d wish to make. “This is the daughter of Jacques Barzun; she’s a New York transactional lawyer.” “This is Sam Polverino, a criminal lawyer from San Jose.” “This is Barbara Wallraff, the language columnist for the Atlantic.” “This is Lynn Hughes, a federal district judge from Houston.” “This is Bill Lynch, the influential lawyer who introduced the resolution enabling you to perform our wedding.” And so on. That way, he could tailor and personalize his greetings.

  “There’s not going to be a lot of toasting, is there?” he asked nervously.

  “Some, Nino. Please just grin and bear it.”

  “I don’t want to sit through that.”

  “I can’t blame you. But people will be talking about your friends, Lyne and me. You’re marrying us tomorrow.” I smiled at him.

  “That’s true. But let me leave before the toasts begin.”

  “Your old kill-me-first joke.” I was referring to his favorite joke about the prisoner whose last request is to be hanged before, not after, a congressman delivers a speech.

  “Ha! Exactly.”

  “People will notice if you leave, Nino, and that’ll put a damper on the party. No doubt.”

  “Okay, but they’d better not last long.”

  “I’m sorry, Nino. I have no control over that. Please just be as gracious as you can be.”

  “Well, I’m not speaking.”

  “That’s fine,” I said as reassuringly as I could.

  He grimaced at me when the toasts started, but all in all the speeches were heartfelt, apt, and fairly succinct. He laughed at various points when stories were told of my early fascination with words and dictionaries—especially when my brother Brad told how he’d warned our parents that his 15-year-old brother was spending hour upon hour copying words out of Webster’s Second New International Dictionary instead of doing anything useful that might lead to a career.

  Much to my surprise, but perhaps no one else’s, Justice Scalia sp
ontaneously took the microphone at the end of the evening and made several minutes’ worth of generous remarks about Karolyne and me. “I’ve never known anyone more passionate about his work than Bryan,” he said, “and in Karolyne he has a perfect match.” Given his stated opposition to speaking at such events, I was touched that he felt moved to take the floor.

  On our way out after the three-hour dinner, he said, “That wasn’t so bad! I learned some things about you, Bryan. You’re quite a guy. And of course Karolyne’s quite something, too.”

  “Thanks, Nino,” I said as the three of us piled in to the backseat of the marshals’ car.

  Freudian Slip-and-Fall

  The next morning, Justice Scalia went to a Latin Mass we’d found for him in Providence, then met me in the lobby of the Westin to have lunch in the historic neighborhood known as Federal Hill. It was a beautiful, sunny day. The marshals took us to DePasquale Plaza for open-air dining at Constantino’s Venda Ravioli. We were joined by my father and his companion, Mary Irene, a Santa Fe artist. The day before, my father had missed the rehearsal dinner because of a kidney stone; on a layover in Denver (en route from San Francisco), he and Mary Irene had taken an ambulance from the airport to a local hospital, where he was in excruciating pain until he passed the stone. Over lunch, the two of them recounted the traumatic events of the past 24 hours.

  Probably casting about for something interesting to say to Justice Scalia, my father asked whether Bush v. Gore was a hard decision.

  “Not really. Remember: it was Al Gore who took the case to the courts. The real question was who was to decide: a highly partisan Florida Supreme Court or the U.S. Supreme Court.”

  “But isn’t the Supreme Court highly partisan these days?” my father persisted.

  “It looks that way, which is unfortunate, but in fact we’re not. It’s just that presidents appoint Justices with a particular judicial philosophy, which ends up looking as if the votes go down party lines. That’s misleading. In any event, most of our cases aren’t political at all; we’re doing mundane lawyer work involving patents and regulatory authority.”

  As we left the restaurant, we said goodbye to my father and Mary Irene, who headed toward a taxi line. Walking on the cobblestones of the promenade, I spotted the marshals at the car waiting on Atwells Avenue. I said to him joshingly: “Nino, you’re so mollycoddled! You have these marshals taking care of you. Look at them. They make everything so easy for you. I’ll bet you’ve forgotten what it’s like to travel like a normal person.”

  “Not at all. I’m aware of what’s going on. I’m not like Warren Burger, who was also known by insiders as Mr. Magoo!”

  “He wasn’t aware?”

  “Are you kidding? He was a real Mr. Magoo. You know the cartoon, right?”

  “I remember.”

  “The marshals would lead Burger around, and he was unaware of everything that wasn’t three feet in front of him.” He did a brief imitation of the Mr. Magoo character.

  “Really?”

  “Yeah.” He did a silly walk as if holding a cane, squinting as he went. “He would bumble along, doo-duh-doo-duh-doo-duh-doo. Oblivious of everything.” We laughed, and then he resumed his normal gait.

  Justice Scalia started to get into the marshals’ car, and a marshal was with him at the door. As I was going behind the car to get in on the other side, Justice Scalia fell to the ground and rolled. He was utterly silent. I saw him on the ground and ran over to help him up. It seems he hadn’t gotten entirely onto the seat when he’d begun turning, and he slid out instead of in. Our waiter, who had been lingering at a distance as if starstruck, rushed toward him at the same time as I did but didn’t touch him. With the marshal, I pulled him up to get him into the backseat. The marshals seemed embarrassed.

  “You okay, Nino?”

  “I’m okay. Guess I wasn’t very careful.”

  I ran around and got into the backseat with him. “No broken bones? Check your knees, your wrists, your fingers.” I gently squeezed both of his knees to make sure he felt no pain there.

  “No broken bones. I think I’m probably just bruised.”

  “You’re sure?”

  “I’m okay. My elbow hurts.”

  “Give me your arm.” But as I massaged his left elbow, he jerked it away. “Ow!”

  “Let’s just be sure you didn’t dislocate your elbow or shoulder.”

  “I’m fine. Let’s get back to the hotel.”

  “Let me feel your other elbow and shoulder.”

  “I didn’t fall on that side, dammit!”

  “Should we go see a doctor?”

  “No! I’ll be bruised. I’m sure it’ll be sore for a few days.”

  “You’re really lucky.”

  “I guess so. Dammit! My elbow’s going to hurt for the next week.”

  “I’ll give you some ibuprofen when we get to the hotel. That’ll keep the swelling down.”

  “Okay. You sure? Ibu-what?”

  “Ibuprofen. It’s Advil. Maybe we should ask your doctor whether it’s compatible with whatever other medicines you’re taking.”

  “It’ll be fine. I don’t take many medications.”

  “Nothing incompatible with Advil?”

  “Nah.”

  “Okay. I’ll give you two Advils as soon as we get to the hotel.”

  “I’m a tough guy,” Justice Scalia said, grinning in the backseat.

  “I feel bad about the conversation we were having beforehand.”

  “How so?”

  “About your being mollycoddled by marshals, and then your Mr. Magoo reference to Chief Justice Burger.”

  “What of it?”

  “I don’t know if you’ve read Sigmund Freud’s The Psychopathology of Everyday Life, but he connects things like that. He might say that my kidding you about being pampered caused you subconsciously to be a little more footloose and incautious.”

  “Ah, baloney.”

  “Well, I’m glad you’re okay. You’re going to have a sore elbow, all right.”

  “I’ve had worse,” he said, stretching his arm. “At least I’m in good enough shape to get you hitched tonight. You’re absolutely sure I have the authority?”

  “Yes. I’ll even show you the legislative resolution granting it specifically to you for our particular wedding. Did I tell you that some Rhode Island legislator made a speech in opposition?”

  “What?!”

  “Yeah, a Republican started bloviating about how they have plenty of good, solid Rhode Island judges to perform weddings.”

  He laughed. “Did someone explain why I would be coming here to do it? That we’re friends and coauthors?”

  “I think so. The objections didn’t last long. Let’s run by my room so I can show you the resolution.”

  “Nah. Show me later. I trust you. Let’s get to my room.”

  Walking through the lobby toward the elevator, I promised the bellman $20 if he’d get two ice packs into my hands quickly. One of the marshals said he’d wait behind and bring them to the room.

  We got on the elevator. “Nino, let’s stop at our suite first. We’ve got to get your Advil anyway, and if I don’t show you the certificate now, you’ll never see it. ‘Later’ will never come.”

  “Oh, okay.” Soon we were at my door. “Hey, great suite!” he said as we entered my room. “Did you know they put a bottle of Campari in my room?”

  “Of course! Lyne did that,” I said, handing him two Advil tablets and a bottle of water. Then I showed him the fancy certificate.

  “Pretty impressive. I’m endowed with full authority. I am, after all, a Supreme Justice!”

  “You are indeed. Let’s go over to your suite, relax a bit, and get those cold compresses on your elbow. I’ll get you some sparkling water.”

  “Sounds perfect. I’ll put my feet up. My right knee’s a little sore, too.”

  We walked to his room. I helped him get his shoes off: at this point in his life (age 74), bending over to tie or untie sh
oes required a bit of effort. To get situated, he stripped down to his undershirt and boxer shorts. I put sofa pillows under his feet and got him lying back on the couch. A knock came at the door: the ice packs had arrived in less than three minutes. All was well. I felt as if we’d averted what could have been a disaster.

  Free-Riding and Textualism

  Although I might have left him alone, I decided to stay with him to make sure he was feeling all right. Soon he seemed to have forgotten about his elbow.

  “I’ve been thinking about Reading Law,” I said.

  “Always working, aren’t you?” he said, lying back. “For goodness’ sake, you’re getting married tonight!”

  “Well, we have this time together. We may as well use it.”

  “If you say so.”

  “In the literature,” I said, “some scholars are using the term ‘legislative free-riding.’ If the legislature can’t pass clear legislation, they just rely on the courts to patch up their messes.”

  “That’s right. They pass more and more of this junk. Courts shouldn’t bail them out. Courts should either enforce the statutes as written or declare that they have no discernible meaning and hold them invalid. I wish we did that more.”

  “Wouldn’t you agree that we have a syndrome right now of courts’ not doing that and therefore encouraging more and more slipshod lawmaking?”

  “I would agree. It should stop.”

  I handed him his Campari and soda—light on the Campari and heavy on the soda. “Well, I’ve written a couple of paragraphs for the intro. See what you think.”

  “I will. When can I get a new draft?”

  “It’s awaiting you back in chambers.”

  “You managed that? I imagine you’ve been busy this week. I don’t know how you do it all.”

  “Well, I love what I do, just like you.”

  “We’re lucky that way,” he said.

  Our conversation returned to Congress: “We should have a moratorium on new laws for a while,” Justice Scalia said.

  “What would happen if Congress passed no laws for five years—just had occasional hearings to keep themselves busy?” I suggested.