I relented on contractions without hesitation. Given how accommodating he’d been with the first book, I thought that reciprocating was only fair. Together, we made the contractionless style work without making the tone too wooden and hyperformal.
Three days later, he urged me to abandon about one-third of the book—all the points relating exclusively to the interpretation of contracts. I had already been noticing how intractable that material was. So this came as something of a relief to me as well. In any event, the first 37 canons dealt with all legal instruments, including contracts, so we were hardly abandoning that subject altogether.
I responded: “Nino—Okay. I’m persuaded. You see what a reasonable coauthor I am? [I was echoing the words he’d used with me when conceding about contractions in the first book.] It would make the book unwieldy, and the contracts stuff would overwhelm much of the rest of the book.”
He came back: “Deo gratias. I’ll concentrate on statutes.”
The Judicial Juggernaut
My coauthor’s energy was unwavering. On Wednesday, September 15, 2010, he wrote me a typical message that reflected the kind of schedule he kept. He said he’d be leaving the next day for “a gig in San Francisco,” and wouldn’t return until the day before our Sunday-afternoon session. He wanted a clean draft that incorporated all our cumulative changes to date. Maybe I just imagined a sense of excitement: “I am arranging to have a trestle table set up in my chambers, so we can edit side-by-side, as we did for the last book. Nino.”
I took clean copies for us to use that Sunday afternoon—a binder for him and a binder for me—with all his proposed revisions entered, together with my own gentle revisions of his revisions. We liked how the book was shaping up.
As we were working on Sunday, he wanted to delete an insertion that I had marked for revision. It was a long block quotation of one of his own dissenting opinions, and he wanted to end the paragraph by saying, “The dissent stated,” followed by a colon and then a three-paragraph block quotation that occupied more than one full printed page. My notation, inserted characteristically in double brackets, said: “[[Must supply informative lead-in.]]” When we reached this point in the manuscript, he said, “Get rid of that.”
I said, “We have to lead into this quotation more deftly, Nino. It’s your dissent in Babbitt v. Sweet Home Chapter.”
“I know what it is,” he said sharply. “What do you mean ‘lead in more deftly’?”
“It’s one of my rules of writing that you can’t just say, ‘The court stated,’ and then plop a quotation on the page. We must entice the reader.”
“I disagree. Leave it.”
“We can’t leave it, Nino. Many readers will notice.”
“Why do you say that?”
“I spend 15 minutes in every seminar showing lawyers how to introduce block quotations properly. It’s in all my books.”
“Show me.”
“It’s point #76 in The Winning Brief. It’s section 29 in Legal Writing in Plain English.” I pulled both books off his shelf to show him.
“Ha! You know the sections that well?”
“I know our sections of Making Your Case that well, too. In fact, we make the point there, if only glancingly. Here, hand me your copy. I can find the page within 15 seconds, thanks to our thorough index.”
He handed it to me. The pressure was on because he was timing me. I looked in the back of the book under “Quotations, Block,” and ten seconds later announced: “Nino, it’s on either page 128 or 135. I’m wagering on 128. Here, we say: ‘Never let your point be made only in the indented quotation. State the point, and then support it with the quotation.’ There.” This, of course, was a subtle fillip for his having battled me on whether we’d have a thorough index in Making Your Case. It was a small triumph.
“I’m astonished,” he said. “So what are you saying we need to do here, in this passage?”
“First, we need to be candid with our readers that you wrote the dissent. Second, we need to explain briefly why we’re quoting it.”
“I don’t want to say I wrote the dissent,” he said.
“But we have to. We must be frank about that. If we just say, ‘The dissent stated,’ and then have a two-page block quotation with a footnote that says ‘Scalia, J., dissenting,’ it won’t look good.”
“We have to say why we’re quoting it?”
“Yes,” I said. “Tell the reader why. That induces the reader to embark on the block quotation.”
“If you insist.” He sighed, rose from his desk, and went over to his computer. I sat beside him, at the chair he’d placed there for me, and watched these words appear on his monitor: “We quote the dissent, which one of us wrote—and quote it at length because we like it: . . . .”
We both laughed, and we ultimately published the passage that way, on page 230. It’s one of my favorite touches in the book.
Of course, that was only one of dozens of improvements we made in the manuscript that day. We wrote several paragraphs together and made some significant progress.
The next morning, he sounded upbeat: “Bryan: Great day yesterday. Got a lot done, and I feel better about the book.”
The following month, in October, we worked together again in chambers. We must have done well because the next day he wrote: “Bryan: A most productive afternoon and (especially) enjoyable evening. I am working on the stuff you assigned.”
Our exchanges of material were now frequent and sometimes voluminous. One exchange stood out: on October 21, I sent him a three-paragraph debunking of some arrant nonsense that a nontextualist had written and published in a law review. Justice Scalia urged me to exclude it (I ultimately did), saying: “Just from his bumbling writing one can tell that this guy is a jerk—but I’m not sure he’s the kind of jerk we’re after—a text-distorting jerk. Anyway, an associate prof. at the Univ. of X is pretty small game for us.”
An Unfunny Break
On February 1, 2011, Dallas experienced a terrible ice storm. Karolyne and I were stranded that day in Little Rock, unable to return home. A particularly dangerous type of invisible ice formed on the ground throughout the DFW Metroplex: black ice. When we returned to Dallas on February 2, on our way back from the airport, I fell on a patch of this black ice while foolishly trying to push our chauffeured car, which was stuck halfway up our driveway—a 20° incline. I suffered a serious break: my left humerus was severed clean in half. A week later, a Dallas surgeon repaired the break with a metal plate and six screws, but that surgery damaged my radial nerve, which runs along the triceps down into the hand. As a result of that nerve injury, I suffered from radial-nerve palsy, meaning that my left hand was curled up and essentially crippled. I couldn’t extend my fingers. If I passed the salt, I did so with a curled-up hand, and then I couldn’t let go of the saltshaker. Nor could I so much as lift my left thumb.
For nearly two years I wore a brace that kept that hand from becoming permanently crippled. It resembled a coat-hanger contraption with a rubber band extending to a small sling that enveloped the left thumb. My doctor said it was possible that the nerve would recover on its own and that I’d be fine. But over that period, there was no discernible improvement. During those months, Justice Scalia and I spent 17 days together. He was seriously concerned about the future of my hand. Coincidentally, Mrs. Scalia had suffered her own icy accident, breaking her wrist after falling on ice while trying to retrieve the Washington Post thrown on their front lawn. (Justice Scalia often joked later that this was good evidence of why one shouldn’t subscribe to the Washington Post.) Her recovery was also difficult but more successful than mine.
Again and again, Justice Scalia goaded me to get a second opinion at Johns Hopkins. He was insistent, and he shared his insistence with Justice Clarence Thomas, who enthusiastically joined the campaign. In the end, after his long urging and with the kind help of Nina Totenburg (the NPR legal-affairs correspondent) and her physician-husband, I found Dr. Thomas Brushart at Johns Hopkins. O
n December 17, 2012, he performed a five-hour tendon transfer that would enable me to use my left arm normally, with only a slight loss in strength. It worked.
Strangely enough, as I was heavily dosed up on pain medicines, I spent much of the day after the surgery working with Justice Scalia in chambers—with my arm almost constantly raised over my head. I remained clearheaded enough, somehow, that we worked out a couple of useful passages (by then we were actually working toward the second edition of Reading Law), but Justice Scalia could tell I was in pain. When the doctor’s office called for a midafternoon exam to replace my temporary splint, we called it quits for the day and for the year.
My eventually successful recovery was attributable in no small measure to Justice Scalia’s persistent concern, empathy, and willingness to help me find the best doctor. Today my left hand functions normally. It’s an outcome that even many doctors marvel at. Rarely today do I even think about the trying period in my life in which I had almost no practical use of one of my hands—a condition that might well have become permanent.
Unjust Deserts
On March 1, 2011, someone tweeted about Justice Scalia’s use of the misspelling just desserts instead of the correct just deserts (what you deserve) in a newly released judicial opinion quoted in the New York Times. Several people sent me the tweet asking whether it was correctly quoted. So I wrote to Justice Scalia: “Nino—Today the NYT quoted you as writing ‘just desserts’ instead of ‘just deserts.’ Please assure me that they’ve libeled you! As ever, Bryan.”
His response was almost immediate: “Bryan: I am distressed that you need to ask. My opinion said ‘deserts.’ I will add, in the interest of full disclosure, that my original draft of the sentence in question had ‘desserts,’ but my law clerk caught the error. But that is why I spend a lot of time hiring literate law clerks. (I would have put this insignificant qualification in a footnote, but e-mail does not permit footnotes.) Should I ask the Times to correct its error? Or why don’t you do so? Nino.”
“I’ll be happy to,” I responded.
“Excellent! You can claim standing because it denigrates our book [Making Your Case], which stresses the need to ‘Strengthen your command of written English’ (point 29). But better not to use ‘denigrate,’ because the hacks at the Times probably do not know its meaning. Nino.”
I then composed my letter to the Times, using the subject line “unjust deserts”:
Dear Editor:
In our book Making Your Case: The Art of Persuading Judges, Justice Scalia and I urge our readers: ‘Strengthen your command of written English.’ We briefly explain some good ways to do that, including buying and using sound dictionaries of usage.
In one of my own such dictionaries, I liken the mistaken form of ‘just desserts’ (for the correct ‘just deserts’) as a ‘stage 2 misusage,’ akin to a grade of D, a triple bogey in golf, or, when it comes to manners, audible belching.
Yet in today’s Times you have misquoted—indeed, maligned—my esteemed coauthor as having written ‘just desserts.’ He assures me that his opinion in fact says ‘just deserts.’ Is this an actionable libel? Perhaps. Is he a public figure under New York Times v. Sullivan? Perhaps. But let’s not test these things. Won’t you simply print a retraction and a straightforward apology? That would go a long way toward ameliorating the current state of editorial affairs.
Bryan A. Garner
Author, Garner’s Modern American Usage
Justice Scalia responded: “Bryan: Very nice. Funny enough that they may publish it.” But I never saw that the New York Times responded in any way. The editors seem not to have run a correction.
A Schism over Isms
For the improvement of Reading Law, I was able to persuade West to engage five critical readers for a modest honorarium. One of these was Tony Honoré, Regius Professor Emeritus of Roman Law at Oxford University and the author of many important books. Originally South African, Tony Honoré had been Nelson Mandela’s lawyer in the 1950s. I had known Honoré since 1988, and we had spent a good deal of time together in Oxford. He had been my chief source for Latin translations in Black’s Law Dictionary, and he was unfailingly reliable. His participation in this project seemed particularly apt, since it was his collaboration with H. L. A. Hart that I offered as a model for our own when I originally pitched Making Your Case to Justice Scalia. After reading the manuscript in June 2011, Honoré called to say that he was sending the marked manuscript back to me—but especially he called to warn me.
“Bryan,” he said in his impeccably old-fashioned British accent, “you’re making a mistake with all your references to originalism, which is a dangerous word. It’s a doctrine that isn’t favorably viewed in the academy, and you’ll be derided for defending it.”
“But surely you don’t disagree with the idea that historical meaning controls,” I said to him.
“No, not really. And I think I know what you’re referring to throughout the text. But I urge you to call it by a different name. Perhaps historicism. If you call it originalism, you’ll be a laughingstock. A word to the wise. I’d better ring off now. Cheerio.”
Naturally, this call had me worried. I discussed it with my lawyer colleagues and decided I should broach the subject with Justice Scalia. Probably 30 minutes after my call with Honoré, I called and reached Angela.
“Angela, it’s Bryan. Is Justice Scalia in?”
“Hi, Bryan! One moment.”
“Hello, Bryan! How are you doing?”
“Great, Nino. How is it up there?”
“Busy. Really busy. Lots of work on opinions. How’s the book coming?”
“Wonderfully. It’s really shaping up. Nino, we’ve got a potential problem that’s arisen, though. As you know, we’ve had some scholarly readers that West is paying for their review, and one of them is Tony Honoré in Oxford. He’s worried about our use of the word originalism.”
“What?! What’s the problem?”
“He thinks it has such negative connotations that we should replace it with another word, like historicism.”
There was a cold silence. I don’t think he had even registered Tony’s name.
“You’re absolutely kidding me,” Justice Scalia finally said. “We’re defending original meaning. The doctrine is called originalism. That’s what I’m known for. Who is this idiot? And why are you listening to him?”
“Nino, it was just a suggestion.”
“Are you losing your nerve? Or maybe I should say you have some nerve to call me this way with such a cockamamie suggestion. It’s ludicrous.”
“I’m sorry, Nino.”
“You should be.” He hung up the phone.
This rattled me, to say the least. It wasn’t the first time that I had drawn Justice Scalia’s ire, but it seemed like the most serious. I had seen his anger subside on various occasions, and I figured I’d let it happen again this time. Given our years of friendship and work together, I thought I’d earned a charitable understanding of my words—or at least the assurance that our relationship wasn’t in real peril. So I went on about my business the rest of the day, but of course I was a little concerned.
The next afternoon I received a chilling e-mail. Justice Scalia wrote that he had been “seething with anger” since our conversation. He asked who the “idiot academic” was whose advice I was contemplating accepting and whether he really thought academia would love me for peddling originalism under another “quite silly” name. He asked whether my adviser suggested that Justice Scalia change his name also “(perhaps to Posner, beloved by the dons)” so that “your interpretive views (rebaptized historicist) can’t be thought to be mine, which everyone knows are (shudder) originalist.”
And then, he said, he’d gotten to thinking that if I was worried, intimidated, or even perhaps ashamed to be associated with originalism, I must also be worried, intimidated, or ashamed to be associated with him in writing a book on the interpretation of texts. Indeed, there was nothing with which he was more c
losely identified than the “disreputable” originalism.
He opined that my adviser—the estimable Tony Honoré, though I’m sure he hadn’t caught the name—was an idiot, and he said he was worried about what other ideas of my adviser I was contemplating accepting. I would not lose my prominence in the field of English usage, Justice Scalia declared, because “there is no one remotely comparable in the field.” He called me “a unique word-nut,” adding: “Anyway, it is not pointy-headed academics who give you your prominence (even though you suck up to them with your craven PC unisexism) but lawyers.”
Then, he continued, if my adviser was an idiot for telling me this, I was an idiot for listening to it. Associating with him in a book on persuading judges was one thing, he said, but now I must have concluded that associating with his views on legal interpretation was quite another. My own proposed introduction to Reading Law, he said, detailed just how thoroughly nonoriginalism had swept the academy. And he said I’d constantly suggested that we take potshots at one professorial Buddha after another. How, he questioned, could I be surprised to hear that all this would make me unpopular in the academy?
The worst was still to come. If I had become newly worried about destroying my reputation in academia, he said, he most sincerely urged me to call off the project altogether. He would return the advance and be delighted to have the coming summer free. He added that, to tell the truth, since he’d learned how worried, intimidated, or ashamed I apparently was to be associated with the views that had been central to his professional career and with which he was identified in public and academic thought, he wasn’t as happy to work with me as he had once been. He signed off, “Deeply disappointed, Nino.”
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