Nino and Me

by Bryan A. Garner

  “That would be excellent. Our polity would flourish.”

  “And what if, instead of the congressional staffers who work with might and main to produce ‘legislative history,’ we had grammatically rigorous editors to proofread and refine the statutes that are passed?”

  “People like you? There wouldn’t be enough!”

  I disagreed. “Oh, there are lots of highly qualified editors out there—highly skilled in grammar. They could work wonders, and the judges’ jobs would get a little easier.”

  “They surely would—if they’re textualist judges. If they’re nontextualists, they’re not paying too much attention to the enacted words anyway.”

  “Right. Of course, in the popular mind, textualists are pretty badly misunderstood.”

  “I agree,” Justice Scalia said. “But why do you say so?”

  “All the reporting is just about bottom-line results, especially when it comes to constitutional litigation. You’re either for gay rights or else you’re homophobic.”

  “The liberal press. I suppose that’s right,” he said.

  “It’s as if it’s commonly understood that judges get to adopt whatever policy pleases them. Most people don’t grasp the separation-of-powers problem.”

  “I see what you mean,” Justice Scalia said. “So my liberal colleagues have convinced people that the Court will create new policies with hardly any restraint.”

  “Sort of. If a textualist judge refuses to gloss a statute in some newfangled progressive way, on the principled ground that that’s not what judges are supposed to do, it never gets reported that way.”

  “That was the point of a speech I gave recently at the National Press Club.”

  “I remember that speech, but I thought you were making a different point—that the statutory wordings at issue are never reported in the press.”

  “Right.”

  “But you weren’t emphasizing that under the separation-of-powers doctrine, the judicial power doesn’t extend to amending the Constitution.”

  “Lookit, I’ve said that dozens of times in various ways.”

  “But those who oppose you have now conditioned the public to think otherwise.”

  “Well, if that’s true, it’s very disappointing.”

  “And your principled approach to judging is called a ‘fig leaf’ for conservative results.”

  “Ridiculous,” said Justice Scalia.

  “I know, but I think we can help set matters right in the introduction to Reading Law.”

  “The intro’s already too damn long!”

  “No, it’s not! I found a quotation from George Washington saying that the prosperity and endurance of our nation depends on proper interpretation of the laws.”

  “I’ve never seen that. You found it?”

  “Yes. You’re going to love it. We must lay out a cogent argument in the intro before we get into the details of how to do textualism properly.”

  “I’ll have a look when I get back,” he said, closing his eyes.

  Again and again, I replayed in my mind Justice Scalia’s fall. The moment it occurred, I decided never again, when outside Washington, to leave it to marshals whom he didn’t know well to see that he got safely into a car. Of course, they were also concerned with external threats to safety, so it was understandable that their attention might be focused on the immediate environment instead of on the Justice himself. In any event, unless a marshal stayed close to him, I would stand with him at his door to prevent a fall. From my wedding day, that became my usual practice.

  Interestingly, the next day both the local TV news and the Providence Journal ran pieces about how Justice Scalia had tripped and fallen near his car on Federal Hill—and reported that he was unhurt. A reporter had called all the local hospitals to find out where he might have been treated. One even called the Supreme Court’s Public Information Office to find out more about the fall. But of course the Court knew nothing of the fall: only he and I, the marshals, our waiter, and a few bystanders knew anything about it.

  Travel Plans

  “Say, where’s Lyne?” Justice Scalia asked.

  “She’s getting her hair done with her bridesmaids. They’re surely having a good time.”

  “I’m certain of that. What time do I have to be at the wedding location? Where is it, again?”

  “Newport. Let me get the marshal and tell him.” I stepped out into the hall to summon the lead marshal. “You know where the Rosecliff Mansion is in Newport?”

  “We’ve already checked it out.”

  I asked him: “How long does it take to get there?”

  “We timed it at 23 minutes,” said the marshal.

  “Good. Nino, we take over the mansion at 4:30, have photos at 5:30, and the wedding at 7:00, and then dinner at 7:45. There’s a dragon dance in there somewhere.”

  “What time should I arrive?”

  “I’d say 5:30.”

  “That early? Are you going with me?”

  “No. We have a bus that’s taking the wedding party from here at 4 o’clock.”

  “So I’ll leave here about 5:30 and get there about 20 minutes later. I don’t want to be there too early.”

  “Believe me, you won’t be. Please leave at 5:15. You’ll have friends there and people who’ll enjoy talking to you. You’ll like them, I promise.”

  “Okay.”

  Then I turned to the marshal. “How many of your men are going to be stationed around Rosecliff?”

  “Four of us, sir.”

  “The wedding planners have asked me if you can manage to be discreetly placed so that we don’t have marshals in all the wedding photos—earwigs always visible, that sort of thing.”

  Justice Scalia chimed in: “Oh, you don’t want that!” He seemed horrified at the idea that our wedding photos would be marred by U.S. marshals lurking in the background.

  “We’ll be out of the way, sir,” said the marshal, diplomatically excusing our wedding planners’ anxiety.

  “Thank you.”

  The marshal left. “Nino, thank you for coming all this way—interrupting your time at the Outer Banks with Maureen and the family,” I said. “I know it wasn’t easy. How’s your arm feeling?”

  “I’m gonna take this ice off! I don’t need it. It isn’t doing any good.”

  “It undoubtedly did some good. Rest up for the next couple of hours. It means so much to us that you’re here.”

  “Well, you two mean a lot to me, so it’s mutual. I’m honored to be officiating.”

  “It’s gonna be a great evening.”

  “That it will, my friend. That it will.”

  “See you at the mansion.”

  “See you there. Break a leg . . . well, maybe I shouldn’t say that.”

  Wedding Photos

  At 5:45, as we were having photographs taken in the rosary outside Rosecliff Mansion, Justice Scalia approached the two of us.

  “Look at you,” he said, walking up to Karolyne. “You look beautiful.” They hugged.

  “Thank you. Thank you very much,” she said.

  Then I shook his hand. Seeing that he was in a black suit with a red tie, I said, “I thought you were going to wear shorts under your robe.”

  “Bermuda shorts,” he said, grinning. “This is a nice location.”

  “Oh, it really is.”

  Most of the posed wedding photographs were taken before the ceremony. After Justice Scalia had donned his robe, the groomsmen stood with me and him for photos. He was getting impatient with the peremptory tone and bossiness of the photographer. As she made requests of us, I was constantly reassuring him, over my right shoulder, that she knew what she was doing. She was telling him to move his right foot two inches forward and his left foot to the right one inch.

  “Why?!” he said with some irritation.

  She said: “I’ll explain it to you later. We’ll have a whole conversation about it.”

  “Okay,” he said, lightening up and placing his foot where
she’d asked him.

  Then she told us to look at each other laughing, without moving our feet.

  “Ha! Ha! Ha! Ha! Ha!” he chortled rapidly, with his lips turned up in a kind of hardy-har-har caricature of laughter. All six of us engaged in artificial laughter, which soon led to the real thing. Justice Scalia then turned to me and said the manly words that are surely uttered to every groom right before the ceremony: “It’s not too late to back out!” The laughter just continued.

  The Ceremony

  Soon we were proceeding down the sprawling, beautifully manicured back lawn of Rosecliff, down toward the ocean, with the sound of the wash just below the marble balustrade. Justice Scalia strode off the back porch, down the steps, lips pursed, leading me and the groomsmen. In his characteristic way, he swayed as he walked, holding in his left hand the scrolled-up service that he would be performing. After the entire wedding party had reached the end of the lawn, and my bride was standing beside me, he intoned, “Dearly beloved . . .”

  He performed the ceremony with deliberation and high seriousness. After two scriptural readings, Justice Scalia said:

  The script here says that I am supposed to give an impromptu homily about the couple. I had intended to skip that. But providentially I was at Mass this morning. Bryan very kindly found me a Latin Mass. I’m an old-fashioned Catholic and do the Latin Mass when I can. And the very first reading had a line which is so appropriate—the introit of the Mass begins Deus in loco sancto suo—“God in his holy place.” Deus qui inhabitare facit unanimes in domo—“God who makes those in a home to be of one mind”—unanimes. And that is my hope for you, Bryan and Lyne, that throughout your life, you be of one mind—in the most important things. Because it’s not just a union of the flesh, as the Scripture says, but also, and more importantly, a union of the minds. So may you both be of one mind for many years.

  He came to what he called “the important part”—the vows—and he pronounced us husband and wife (as duly authorized by the State of Rhode Island, of course). A Chinese prayer by Dr. Pon Chan, a solemn “Amen” led by Justice Scalia, and the Lord’s Prayer followed.

  “Mr. Garner, you may now kiss the bride. Ladies and gentlemen, I now give you Mr. and Mrs. Bryan Garner.” As we walked back up the aisle, toward Rosecliff, amid clapping, our mics were still on (though we didn’t realize it). “That was fun, wasn’t it?” I said.

  “You look so handsome,” Karolyne said.

  “You’re so beautiful.”

  But as Justice Scalia would say, “Enough with the mushy stuff!”

  The Reception

  At the reception afterward, a five-piece Chinese percussion band played the “Dragon Dance.” Two men working in tandem in a large dragon suit (head and tail) taunted the onlookers, lingering a little with Justice Scalia, who found the cultural spectacle entertaining. Then the dragon taunted Karolyne and me. The tradition, for which I had to be prepped, is that the bride and groom put a head of lettuce into the dragon’s mouth; after chomping it up, the dragon spits it into their laps—for good luck.

  At dinner, Justice Scalia sat with our friends the Englishes from Portland, Oregon, and the Tietjens from Minneapolis. In planning the seating arrangements, I put him between two talented conversationalists: Elizabeth English and Susan Tietjen. He was always hungry for good conversation. Of course, he was the cynosure of the table, deeply involved in discussions—and he listened and laughed perhaps more than he spoke. At one point I saw him jump up from the table and walk to the bar, flanked by marshals who suddenly hopped to. Elizabeth came over and said, “He’s getting us a drink called a Pimm’s Cup, which involves something called ‘bitters.’ He can’t believe we’ve never had one.” Then he went back to his table, holding three cocktails at once, and had a toast.

  Later, toward the end of dinner, he came over to me. “Bryan, I saw your wedding cake. It looks like Samuel Johnson’s Dictionary!”

  “Yes. The two bottom layers are a facsimile of the first edition of 1755.”

  “Very appropriate, but I don’t think I’ll eat any. The band’s starting to get kind of rock-’n’-rolly.” They were playing the 1963 Beatles song “All My Loving.” He said, “I can’t go for this music. I think it’s time for me to leave. I hope you’ll understand.”

  “I’ll stop the band.” I sent a friend over to stop the music. “My father’s about to read an epithalamion written to us by John Simon. He couldn’t attend. Can you wait to hear that? We’ll be done in five minutes.”

  “John Simon, the guy who writes for National Review?”

  “He used to write for it, yes. The film and theater critic.”

  “How do you know him?”

  “We’re close friends. He’s a world-class snoot. We’ve known each other since the late 1970s.”

  “No kidding.”

  “You know, he wrote about language for Esquire,” I said. “It was language that drew us together—kind of like you and me.”

  “Wait. Did you say epithalamion a second ago?”

  “Yes. You know, it’s a poem written in honor of a bride and groom. Simon wrote it specifically for us.”

  “I think the correct word is epithalamium. It’s Latin.”

  “That’s the more usual form, you’re right. But Simon used the Greek form epithalamion, which is also recorded in unabridged dictionaries like Webster’s Second.”

  “Why would he use that form?”

  “To make the final rhyme work. The last two lines are, ‘And may my words not shame me on, / This heartfelt epithalamion.’ ”

  “That’s clever.”

  “The poet Edmund Spenser also used that Greek form.”

  “Okay, I’ll wait to hear it. But then I’ve got to leave.”

  “Understood. Thanks, Nino, for being part of this. I know it wasn’t the easiest thing to come up here for two days. You made the whole thing especially memorable.”

  “Thank you for asking me. Glad to do it! You’re a lucky man, and I’m happy to see you so well married. I’ll say goodnight now, and then slip out when your father’s finished.”

  “Goodnight. We love you, Nino.”

  He hugged Karolyne and then went over to the corner of the room as my father read Simon’s poem. The earwigged marshals stood around him, and when I next looked up, after thanking my father, he was gone.

  7

  Reading Law: Part II

  (2010–2012)

  Immediately after returning to Dallas from our honeymoon, I resumed work on Reading Law. Soon the cadenza opener that I’d been so enamored of seemed less and less appealing. For one thing, I discovered that another writer on statutory interpretation had already used the cadenza analogy—so the idea wasn’t as original as I’d thought. For another, one of my early critical readers, Sir Christopher Ricks of Boston University, insisted that we should use an actual case rather than an imperfect analogy.

  That’s when I hit upon using James v. United States,34 which was decided less than a year before Justice Scalia took his seat on the Supreme Court. The difficulty here, I imagined, would be to persuade Justice Scalia that Chief Justice Burger and Justices Rehnquist, Powell, Brennan, White, and Blackmun had decided the case wrongly—and that Justices Stevens, Marshall, and O’Connor had gotten it right.

  The case involved a 1928 statute with an immunity provision stating: “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or floodwaters at any place.”35

  The facts of the case were tragic. At a flood-control reservoir open for recreational water-skiing and other activities, a federal employee, perhaps acting maliciously, opened the enormous floodgates as skiers passed by, creating a strong current. Two female skiers fell and couldn’t swim out of the current. Their husbands, operating the boat, tried to circle back to give their wives towlines, but the women couldn’t hold on to them. One husband jumped in to help and drowned as the torrent sucked him through the gates. The women survived but were badly injured.


  The question was whether the statutory immunity barred a lawsuit for personal injury or the loss of human life. The majority held that it did. There could be no recovery because of the absolute wording of no liability of any kind shall attach. But the dissenters astutely noted that it has to be damage of some kind. They cited dictionaries from 1928, and they focused on original meaning. In response, the majority said that damages are given for all sorts of injuries, including loss of life. In turn, the dissenters said that damage (harm) is a different word from damages (compensation for harm), and the two have entirely different meanings in law.36

  Later, Justice Stevens would say that this was among the most tormenting cases he’d ever sat on during his tenure on the Supreme Court.37

  I pointed out all these things to Justice Scalia, who wanted to know how I knew the case so well and why I thought it to be a good illustration of textualist principles. I told him that the case had been decided correctly by the Fifth Circuit sitting en banc in 1985, that the legendarily erudite Judge Thomas M. Reavley had written an opinion distinguishing damage from damages,38 and that I had clerked for Judge Reavley that year. I pointed out that praising Justices Stevens, Marshall, and O’Connor, who had adopted Judge Reavley’s reasoning, would be rhetorically wise—and quite unexpected. My coauthor agreed that in the year before he was appointed to the Court, the majority in James had gotten the case quite wrong. And he agreed that we should open the book with this illustration of judicial interpretation. Cadenzas were out, and floodgates were in.

  But soon we reached a possible impasse on something much less weighty. It was a point on which we’d both been stubborn for years: contractions. In late August, he wrote to me about some “fundamental differences” that we would have to resolve. The first was contractions. He said he would yield in this second book on gender-neutralizing, but not on contractions: “The difference is that here we are competing with serious, scholarly treatises, and saying ‘don’t’ and ‘isn’t’ makes us sound like amateurs among professionals. Like it or not, contractions convey a more folksy, and hence less weighty tone.” I could hear him breathe a sigh of near-despair: “God, there is an awful lot more work to be done.” Again, characteristically, he ended on a note that was half-modest and half-perturbed: “I hope you mostly like what I’ve done—and that it converts to your antiquated word-processing system [WordPerfect] (which remains a pain in the ass to deal with). Give me a call. Nino.”