Nino and Me

by Bryan A. Garner

  About a third of the time, Mrs. Scalia would join us for dinner, usually when Karolyne was in town. All four of us were epicures—we liked new restaurants as well as our tried-and-true standbys.

  Oral Arguments on Obamacare

  Both Justice Scalia and Karolyne had March birthdays—he on the 11th and she on the 26th. Karolyne is a splendid gift-giver, and for his birthday in 2012 she sent him three grosgrain black ties for formal events. She remembered that he’d complimented mine one time when we’d both been in tuxes and complained of his own. He was most appreciative of the gift and wanted to return the thoughtfulness. When he found out that we’d be in D.C. on March 27—the most important of the three oral-argument days for the Obamacare cases—he suggested having her as his guest, in one of his box seats.

  “I still have one left. You know, it’s the hardest seat to get these days in Washington.”

  She’d been keeping up with the lawsuit over the constitutionality of the Affordable Care Act,39 so I knew she’d be thrilled. Justice Scalia said he’d have her back to chambers for lunch with him after the argument.

  “I’ve given one of my other seats to Ezekiel Emanuel. He’s one of the architects of Obamacare, so he needs to be there. Even he had a hard time getting a spot. He came and asked me, and I was happy to oblige.”

  “That’s good of you. So Karolyne may be sitting beside him!”

  “Maybe.”

  So that was the plan. While I’d be teaching, Karolyne would be at the Court.

  On the 26th, Karolyne’s birthday, she and I were in New York for a LawProse seminar I was teaching. Having concluded at 4:00 p.m., we made a mad dash to Penn Station to catch the 5:00 p.m. Acela Express to D.C.—and barely made it. Once I’d sat down, I pulled out my fact sheet for the next day’s D.C. seminar and saw that it wouldn’t begin until 1:00 p.m. I had the morning free—something I hadn’t expected.

  “You think I could get a seat, Lyne?”

  “Surely not, but why don’t you try?”

  I called Justice Scalia’s chambers. “Angela, it’s Bryan. Is he in?”

  “No, the Justice has just left for the day. Is there something I could help you with?”

  “I’m on the train now in D.C. You know that Lyne has a seat for tomorrow’s oral arguments.”

  “Yes.”

  “It turns out that I’m free in the morning. I know it’s a long shot, but do you think there’s any way . . . ?”

  “Let me call the Clerk’s Office. They may still be here. I’ll call you back.”

  In no time, my phone was ringing. “Bryan,” Angela said, “we have a ticket for you. It’s the very last one.” She eagerly told me the story. “General Suter [the Clerk of Court] said, ‘Who’s it for?’ I said, ‘Justice Scalia’s coauthor,’ and he said, ‘Bryan Garner? Of course we’ll get him in.’ But really, Bryan, this is literally the last ticket.”

  “You’re amazing, Angela. A miracle worker! Thanks again.”

  At 8:00 the next morning, we arrived at the Court. Everyone was there earlier than usual for this particular argument. I sat beside Karolyne in the first row of the gallery, just behind the bar section. About 8:40, a marshal I’d never seen before came over to say I’d have to move back a row. “I’m with my wife,” I said.

  “It doesn’t matter, sir. I need the rest of this bench open.”

  The whole courtroom was filling up rapidly. I moved back to the second row, just behind Karolyne, and ended up sitting between two famous Supreme Court advocates: Laurence Tribe of Harvard and Walter Dellinger, the former acting solicitor general. Then a group of four filed in to take the seat I had just vacated and filled the remainder of the bench. It was the attorney general, Eric Holder, and his lieutenants. I’d known Eric since we’d worked together on federal rules in the 1990s. But given that he was deeply involved in conversation with his colleagues, I decided to say nothing to him.

  I shook hands with both Tribe and Dellinger, meeting them both for the first time. I’d known of Dellinger since he had served in the Clinton administration; Tribe, of course, I knew to be the foremost scholar of American constitutional law, his treatise on the subject having been a core text in the field for over 30 years. Tribe asked, “Didn’t you write a book with Justice Scalia?”

  “Yes, and we’ve just finished another—this time on interpretation.”

  “Really?”

  “Yes, we cite you quite a bit, mostly favorably.”

  “I’d like to see it.”

  “It’ll be out in June. I wonder, though: if I were to send you page proofs tomorrow, could you review it to think about writing a blurb for the dust jacket?”

  “Sure I would.”

  “Frankly, I haven’t asked anyone to write a blurb because I’ve dithered a little bit. I think you’d be perfect if you’re willing.”

  “Of course I’m willing.”

  “The dust jacket will be final in less than a week. That wouldn’t give you much time. But I’ll send you the proofs tomorrow, and you can have a look. Justice Scalia and I would be most grateful if you’d do a blurb.”

  That’s how Reading Law ended up with a blurb by Professor Laurence Tribe: pure happenstance. If I had kept my original seat, we might never have met.

  The room was buzzing, and tensions were high. As General Suter announced the case, I saw Solicitor General Donald Verrilli take a drink of water. (This seemed advisable to me. In my book The Winning Oral Argument, I recommend: “Hydrate beforehand.”) But it seems he gulped just as he was called to the lectern and got some water into his windpipe. “Mr. Chief Justice, and may it please the Court,” he barely got out, and then coughed into the microphone. He spent much of the first minute coughing, and then took another drink. This was an unfortunate, and certainly uncharacteristic, start for such an able advocate.

  He was arguing, of course, that Congress could force people to buy health insurance because it’s good for them—given that everybody must buy healthcare at some point. Justice Scalia was skeptical: “Could you define the market—everybody has to buy food sooner or later, so you define the market as food; therefore, everybody is in the market; therefore, you can make people buy broccoli?” Justice Scalia asked.

  Verrilli responded that buying food in the supermarket is “unpredictable and often involuntary.” He never directly answered the broccoli question, except to say that broccoli is different from healthcare.

  Although some commentators later objected that Justice Scalia’s broccoli question was highly impertinent, it illustrated two typical Scalian moves: (1) teaching against the class—that is, upsetting settled biases with points that run to the contrary; and (2) the reductio ad absurdum, that is, taking a position to the extreme to show that it’s untenable. He was pointing out that if the government can force people to buy things because it’s supposedly good for them, there’s no limiting principle that differentiates healthcare from broccoli or any other beneficial product.

  In the end, of course, Justice Scalia was with the minority of four Justices who voted to overturn Obamacare. Chief Justice Roberts provided the crucial fifth vote for the majority, upholding it.

  As soon as the arguments had concluded, Karolyne was off to have lunch with Justice Scalia, and I was off to teach a seminar at a D.C. firm—on the art of oral argument. While teaching that afternoon, I mentioned the argument I’d just witnessed and stressed the beforehand in “Hydrate beforehand.” In fact, I amended it to “Hydrate well beforehand.”

  The Literary Finish Line

  Three days later, on March 30, Justice Scalia e-mailed me to say that he wanted to discuss his latest edits. I responded: “Nino—Just arrived in N.Y.C. at midnight last night, and I’ve reviewed your excellent edits. Yes, I’d like to discuss them. How about 3 o’clock this afternoon?”

  His brief riposte: “Bryan: No. You didn’t review my latest edits because I haven’t even sent them yet. You must be referring to the last package. Three o’clock this afternoon is fine. Call me. Nino.” I
did, and we spent a good hour on the phone as I transcribed edits into the “BAG Master.”

  We worked together in his chambers twice during the week of Sunday, April 15, and had dinner together twice. On Wednesday afternoon, as we were putting some final touches on the book, he noticed that on page 211 I’d used the adjective redoubtable in reference to Max Radin, the great statutory-interpretation expert at the University of California at Berkeley. I’d inserted a reference to “the redoubtable Max Radin.” After all, we both liked Radin a lot: he was the leading expert during the first half of the 20th century.

  “Redoubtable?” he asked. “I agree that he was redoubtable. There’s no doubt he was redoubtable.” He paused. “No doubt about it. But didn’t we use that word somewhere else in the book?”

  “Maybe so,” I said. I called my office in Dallas and spoke with my colleague Becky to ask her to do an electronic search of the entire 600-page book for the word redoubtable. She found another on page 93. We had a reference to “the redoubtable lawyer and statesman Elihu Root.”

  “Now Bryan, you’ve written more books than I have,” Justice Scalia said, smiling. “You can’t use a word like redoubtable more than once in a book—even if it were a thousand pages long. It just sticks out.”

  “You’re absolutely right, Nino.” It was a point I’d never had register so strongly on my consciousness.

  “So,” he said, “the question is who was more redoubtable? Or who by today’s standards?”

  “I think we believe Radin is more redoubtable in matters of statutory interpretation. Doubtless Root would be in matters of statesmanship.”

  “Then let’s downgrade Root.”

  “How about estimable for him?”

  “No,” said Justice Scalia. “I don’t like the sound of that word. Estimable. It sounds effete. Why not just omit any adjective?”

  “We could do that. But partly what we’re doing, Nino, is telling readers things they ought to know even if they don’t know them. We’re teaching legal literacy. We’re saying, ‘You ought to know this.’ ”

  “I see your point,” he said. “How about noted? We’ll say ‘the noted lawyer and statesman Elihu Root.’ Should there be a comma after statesman?”

  “No,” I said, “it’s a restrictive appositive. If we added a comma, it would be nonrestrictive, and we’d be suggesting that Elihu Root was the only noted lawyer and statesman—presumably ever.”

  “Yes, you’re quite right. So no comma. It’s nice having your grammatical calls on the spot like this. You know that?” I was flattered. “Now,” he said, “let’s talk about lexicography for a minute. Redoubtable . . . where does it come from, anyway? It can’t mean ‘capable of being doubted again.’ ”

  “That’s true. I’m willing to wager it came in through French. It’s probably an old Gallicism.”

  “That’s what you call a French borrowing? A Gallicism?”

  “Yes.”

  “Is that in Webster’s Second?”

  “I guarantee you it is,” I said, walking over to his dictionary stand.

  “Please read it,” he said.

  I flipped to page 1028 of his beloved Webster’s Second, and read: “ ‘Gallicism, n. A word or expression peculiar to the French language, which is borrowed or adapted for use in English.’ Etc.”

  “Is redoubtable in your usage dictionary? Let’s find out if it’s a Gallicism.” He reached behind his monitor and took down the third edition of Garner’s Modern American Usage. Meanwhile, I was looking up redoubtable in Webster’s Second.

  “By golly,” Justice Scalia said, “you have a full entry on it. Redoubtable can mean either ‘venerable’ or ‘fearsome,’ and it’s a 14th-century loanword from the Old French word redoutable.”

  “Yes,” I said from the dictionary stand a few yards away. I summarized the entry on redoubtable from Webster’s Second. “The older meaning is ‘causing fear or alarm’ or ‘formidable, fearsome.’ Over the centuries the word has undergone what linguists call ‘melioration’: the sense has become more favorable.”

  “Really? That’s what it’s called?” he asked.

  “Yes. It’s the antonym of pejoration, which is what happens when a word takes on very negative meanings. Like bitch—once a perfectly neutral word meaning a female dog. Or notorious. Have you ever noticed that the adjective notorious has undergone pejoration, while the corresponding noun notoriety is mostly a positive word?”

  “Huh. Interesting. Is redoubtable related to doughty, meaning ‘valiant’?”

  “Well, no. I’m pretty sure that’s Anglo-Saxon. You can tell from the spelling. But redoubtable is related to the military term redoubt, meaning ‘a small fortress’ or ‘a secure stronghold.’ ”

  “Well, I’m glad we caught that second redoubtable,” Justice Scalia said. “We’ve just got to be careful about using words like that more than once.”

  “Except, of course,” I said, “in a conversation like this one.”

  “Ha!” he laughed. “Yes, between snoots like us.”

  “Yep. I guess what you’re saying, Nino, is that within the corpus of writings contained in this book, a word like redoubtable should remain a hapax legomenon.”

  “Yeah, but that’s the phrase’s loose sense that you allow. As you know, I think it should be a term used only once in an entire language.”

  “But that doesn’t make a lot of sense, Nino.”

  “Why not?”

  “Let’s take a famous hapax legomenon. In Love’s Labour’s Lost, Shakespeare has a character named Holofernes, a pedant, use the term honorificabilitudinitatibus. It’s made-up Latin.”

  “Say that again?”

  “Honorificabilitudinitatibus.”

  “How do you know this off the top of your head?”

  “I used to write about Shakespearean linguistics back in the early 1980s. Remember? Anyway, Shakespeare used the word only once. It’s the Elizabethan equivalent of supercalifragilisticexpialidocious, from Mary Poppins.”

  “Right. Go on.”

  “Then a lexicographer records it, or a scholar refers to the word, and it’s now been used twice in the language, so it’s no longer a hapax legomenon.”

  “No, I don’t think that’s what the phrase is referring to. It means in literature.”

  “Scholarship isn’t literature? We always say ‘the literature’ when referring to scholarship. Patent lawyers refer to ‘prior art’ when referring to ‘the literature.’ Anyway, how can a word have only one appearance in an entire language? If lexicographers are doing their job, then dictionaries account for a second appearance.”

  “Okay, I give up arguing about this stuff. The fact that we can spend so much time talking about these things—and I do enjoy it—means the book should be complete.”

  He had a point. We were working toward a June 2012 publication date, and it was mid-April. Since early March, my team in Dallas had been engaged in a massive citation check as well as preparing the table of cases and the index. The LawProse lawyers—Jeff, Tiger, Becky, and Karolyne—plus a team of four third-year SMU law students (known as Garner Law Scholars), were checking all quotations word for word, as well as the accuracy of all citations. Meanwhile, Justice Scalia and I were doing our own checks.

  A few days after returning to Dallas, on May 3, I wrote to him: “Nino—Here’s the current version. I’m holding off [submitting the final publishable page proofs] till Tuesday. I’ll call shortly. You can proof all weekend. B.”

  His reply was terse: “Bryan: Not likely. I’m done. Nino.”

  The transmission to West took place May 8, with the expectation that we’d have bound books, with dust jackets, on June 20. That high expectation was fulfilled.

  An Unexpected Mea Culpa

  Karolyne and I were back in D.C. on May 23, and we arranged to lunch with Justice Scalia at Central Michel Richard, an excellent restaurant not far from the W Washington, which had become our usual haunt. We had introduced him to Central the year before,
and he liked it. By the time he walked in, we had already ordered a bottle of Champagne to celebrate the publication of Reading Law.

  “To our magnum opus,” I said. We all raised our glasses.

  It was a quick hour-long lunch, and I filled him in on some of the harrowing details of what our office had gone through to get the final pages into production.

  With a big nod of resolve and a furrowed brow, he raised his glass and said, “To your excellent LawProse team of Jeff, Tiger, and Becky.”

  On our way out of the restaurant, Justice Scalia led us over to a table where four of his former clerks were sitting. He introduced me and told them what we were celebrating. He and I both shook their hands and continued our exit.

  At 1:46, only 20 minutes after we had parted, I received an extraordinary e-mail from Justice Scalia. He said he had enjoyed the lunch but had suddenly been struck by the realization that he’d been rude in not introducing Karolyne to his former law clerks. He said he knew at the time they’d recognize my name, but only later did it occur to him that Karolyne is also accomplished and deserved an introduction. He had learned the lesson from experience: “Maureen gets really mad, and rightly so, when I am introduced and she is left standing like a nonentity. Please give my profound apologies to Lyne. I am a lout. Nino.”

  Network Negotiations

  When it came to publicizing Reading Law, I thought that the best possible television appearance would be with CNN’s Piers Morgan Tonight—a full hour-long interview, as he would sometimes do with major guests. The Thomson/West marketing team recommended otherwise. They wanted 15 minutes, perhaps 20 at most, on MSNBC’s Morning Joe. I countered by arguing for a Fox News show. The marketing team—who seemed not to be Fox News enthusiasts—recoiled.