Nino and Me

by Bryan A. Garner

  I sat in chambers with Justice Scalia and explained the impasse. He had begun getting media requests through the Supreme Court’s Public Information Office. I persisted in touting Piers Morgan Tonight as the best down-the-middle forum. Justice Scalia had never heard of Piers. I gathered that he simply didn’t watch TV news much.

  “Bryan, you know a lot more about this than I do. Just tell me what we want to do.”

  “Piers Morgan. Full hour.”

  “Okay. Let’s do that.”

  “Wait a second, though,” I said. “Piers will have to commit to a full hour, and we haven’t approached him yet. But I think we should stipulate that it must be a full hour.”

  “Why?”

  “Because you’re a major figure—and it slights you to have something less.”

  “I see that.”

  “Plus,” I said, “what if he had you on for the first half and then Lady Gaga on for the second half—or, worse, he puts you on after Lady Gaga?”

  “Who’s Lady—Lady what?!”

  “Gaga. She’s a racy pop star.”

  “Yeah. Not good. Need to keep it dignified.”

  I said, “West wants to limit the time to 20 minutes. I think it’s a grave mistake.”

  “Then tell them we’ll do it only if it’s for the full hour,” he said. “We’ll be on together, right?”

  “You bet. I think that’s helpful to you, Nino. Remember when Lesley Stahl kept you way overtime, in that hot room, with the camera trained on your face?”

  “Yes, I do!”

  “If I’m there on camera with you, I can call him out for asking an improper question. I can deflect so that you don’t have to.”

  “I see that. But I’m pretty good at defending myself.”

  “Sure you are. But we have a good dynamic, and I can be a buffer if necessary.”

  “Well, you should be there anyway. You’re my coauthor.”

  “This interview will go well,” I assured him.

  Although the Piers Morgan Tonight producers eagerly agreed to the full-hour format, they said they wanted Justice Scalia alone—no Garner.

  Justice Scalia called to tell me. “Bryan, this is supposed to be about the book. You’re my coauthor. I’m not going on without you. That’s what I want to tell them. Do you agree?”

  “I do. Thank you, Nino.”

  “I’ll tell them.”

  “One more thing, though,” I said. “You’re scheduled to film at 5 o’clock in the afternoon, right?”

  “That’s what we’ve said so far.”

  “We need to limit the amount of filming. Otherwise, they’ll tape more than they need, ask more sensationalistic questions, and edit things down.”

  “Ooh. That’s right.”

  “They need at most 45 minutes of footage. We should agree to film no more than 55 minutes. That way, your full answers will have to go in.”

  “Okay. I’ll add that to my usual stipulations,” he said.

  Two days later, Justice Scalia called to say that the Piers Morgan Tonight producers had agreed to all the stipulations except one: they still wanted Scalia alone, without Garner.

  “Bryan, I’m going to stick to my guns. They’ll cave in.”

  “Thanks, Nino. But let’s be sure they stick to the 55-minute limit.”

  “Okay. I’ll let ’em know. It’s only right that you go on with me. I never could have done this book without you.”

  In the end, the producers—or, doubtless, Piers Morgan himself—acquiesced. The interview was scheduled for July 18, well after the Supreme Court’s term had ended and after the Scalias had returned from Europe, where he’d had a two-week teaching stint.

  Karolyne and I spent the afternoon of July 18 with the Justice, who the night before had watched Piers Morgan Tonight for the first time ever.

  “He’s not bad,” Justice Scalia said. “Seemed like a pretty good interviewer. But my friends are saying you’ve led me into a huge mistake.”

  I never found out who these friends were, but they had spooked him into thinking this might become a nightmarish experience—and he fretted all afternoon about it. Karolyne and I did our best to reassure him. “It’s going to be fine, Nino,” I said. “Piers will be good. I’m sure he’s prepared to the hilt.”

  “Justice Scalia,” Karolyne said, “he’s sure to try to get under your skin. He does that with people he doesn’t agree with. But don’t let it get to you.”

  “That’s right, Nino,” I said. “You can’t be irritable, no matter what. If he asks an improper question, I’ll intercede.”

  Karolyne added, encouragingly, “Be lovable.”

  The Lovability Factor

  For an hour before we went to the Supreme Court room where the interview was to be held, our mantra was “Be lovable!” We must have said that a dozen times in his chambers, and he repeated it after us.

  “Justice,” Angela said from the doorway, “Mr. Morgan’s crew would like you and Bryan to have your makeup done now.”

  “Makeup? I don’t want makeup!”

  “No, Nino. We must have makeup,” I said. “Remember Richard Nixon in the 1960 debates, when he didn’t wear makeup?”

  He reflected. “Oh, yeah. He looked terrible. Okay, we’ll do makeup.”

  As we entered the room, we were warmly greeted by Piers and his producers. He said that it was an honor to visit the Court and to do the interview there. He thanked Justice Scalia for that.

  “Of course!” said Justice Scalia. “Say, I watched your show last night. You’re good!”

  “Oh, well, thank you,” said Piers. “First time you’d seen the show?”

  “First time.”

  I said, “He must have been one of the few people in America who didn’t know your name, Piers.”

  “He didn’t?” Piers said with a hint of incredulity.

  “No, I didn’t,” Justice Scalia said, “but I’m glad to know it now.”

  For some reason, the makeup artists took Justice Scalia away for his makeup; I sat in my seat opposite Piers. I tried to make some small talk, but he was giving his rapt attention to sheets that were being handed to him by various staffers—proposed questions, no doubt. Karolyne had gone to sit at the other side of the room with Angela.

  “This will air at 9:00 p.m. Eastern Time?” I asked.

  “Right,” Piers said. “We have little time for editing.”

  “Good. It shouldn’t need much.”

  Once the interview started, both Piers and Justice Scalia settled into a charming conversation. Piers threw me a couple of questions early on, and all was going well. But midway through, Piers started asking some edgy questions that related to the book only tangentially. “How does it feel being in the minority of the Court most of the time?”

  I responded: “That’s incorrect, Piers, he’s in the majority most of the time.”

  “That’s not the information I have,” said Piers, looking knowingly at Justice Scalia. “You’re in dissent more often than you’re in the majority.”

  Justice Scalia said: “You’ve got your facts wrong. I’m in the majority far more often than I’m in dissent. That’s true of all the Justices.”

  It took a moment for Piers to regroup. “What do you have against /kahn-dahmz/.”

  “What?”

  “He’s saying ‘condoms,’ Nino,” I explained, the film still running. (An Englishman, Piers was using the posh British pronunciation.)

  “Really? How did you pronounce that?”

  “/Kahn-dahmz/. What do you have against them, when they could help prevent the spread of AIDS and other diseases in Africa?”

  “Piers,” I interjected, “this has nothing to do with the book.”

  “No,” Justice Scalia stopped me. “Let me answer. I have no public position against condoms. The pope has put out several encyclicals about condoms to establish the Catholic Church’s position. As a Catholic, I adhere to those views, but my private religious views don’t enter my role as a judge.” What fol
lowed was a brief but learned disquisition on various encyclicals, and Piers, also a Catholic, came out looking uninformed. Realizing that his question had yielded no newsworthy material—or salacious sound bites—he pivoted quickly.

  There were two other points on which I jumped in to correct Piers, after he had set up a “gotcha” question on erroneous facts. When I looked down at my watch, I realized that he’d been filming us for about 75 minutes. Then he wanted a walk down the hallway of the Supreme Court for another 5-minute segment.

  In the end, with almost 80 minutes of film, Piers and the producers edited out most of my participation. Piers in a way got his initial demand: Scalia, without Garner (except visually). A few of my friends wondered why I’d remained so silent—and whether I wasn’t there more as a bodyguard than an interviewee. Gone were all the exchanges that put Piers in a negative light. That’s TV, I suppose.

  But Justice Scalia remained warm and lovable throughout, and the next day some news outlets would say that he was on a “charm offensive.” The interview as aired was a big success, and everyone was happy.40

  Just after filming, while Justice Scalia was having his makeup removed, Karolyne and I posed for a couple of photos with Piers.

  Back in chambers, Angela joined Karolyne and me in congratulating Justice Scalia on such a fine interview. Karolyne asked him whether he’d like to join us for sushi before going home.

  “Sushi! Of course. Will I have time to get home before the show airs? I want to watch it with Maureen.”

  “Yes, of course,” I said. “It’s 7 o’clock now, and it won’t be airing for another two hours. You’ll be home by 8:15.”

  The marshals took us to Sushi Taro, our favorite sushi place off Dupont Circle. Whenever we went there, I would invariably order for the entire table: some miso soup and edamame for starters, and then a huge boat of mostly sashimi and a few sushi rolls. His favorites were the spider roll (with soft-shell crab) and unagi sashimi (eel). We each had a Japanese beer and relaxed as we recounted some of the funny moments about condoms—and how bizarre that line of questioning had been.

  “Bryan,” he said, laughing, “you still have on makeup! Ha! You look like you’ve been in drag.”

  “Very funny, Nino.”

  “You look cute,” he said with a wry grin. Karolyne nodded in agreement. “They didn’t give you one of those wipes to take it off?” he asked.

  “No. I didn’t know they had those.”

  “Well, of course I got one. I’m a Supreme Justice, after all.”

  We all laughed. He liked to invoke that self-mocking reference to explain away the special treatment he’d often receive.

  * * *

  34. 478 U.S. 597 (1986) (per Powell, J.).

  35. 33 U.S.C. § 702c.

  36. 478 U.S. at 615–16 (Stevens J. dissenting, joined by Marshall and O’Connor JJ.).

  37. John Paul Stevens, The Shakespeare Canon of Statutory Interpretation, 140 Univ. Pa. L. Rev. 1373, 1387 (1992).

  38. James v. United States, 760 F.2d 590 (5th Cir. 1985) (en banc) (per Reavley, J.).

  39. 124 Stat. 119–1025 (2010).

  40. The interview can be seen at http://www.youtube.com/watch?v=it7sN2jqpNs.

  8

  The Fruits of Our Labors

  (2012–2015)

  Once the second book appeared, the deadline pressures were off, and our relationship involved considerably less strain. The first printing of Reading Law was barely off the press before I began working toward a second edition—almost compulsively. That’s my normal routine: when a book first appears in print, I spend (one might argue masochistically) lots of time improving it in dozens of little ways—finding new sources and snippets for footnotes, burnishing the phraseology, and reworking an occasional paragraph. I especially like hunting down arcane but uncannily pertinent 18th- and 19th-century sources that other scholars seem to have overlooked. With Reading Law, this impulse began when we first undertook the project, and it has never abated.

  After the Piers Morgan interview, each of us made a series of solo appearances to discuss the book. Mine were in Melbourne and Sydney, for courts and law schools. His were a series of television interviews: Brian Lamb (C-SPAN), Chris Wallace (Fox News), Nina Totenberg (NPR), and the Associated Press. He was always selective, and he wanted to avoid overexposure in the press.

  Thomson/West was receiving many requests for Scalia interviews, not only from Charlie Rose and PBS but also from the Colbert Report and the Daily Show, neither of which Justice Scalia had heard of. When told of their nature, and perhaps after watching a bit of them on his computer, he pronounced them infra dig (he said infra dignitatem) for a Supreme Court Justice.

  On August 2, 2012, he wrote a memo to our Thomson/West media-relations contact: “These TV interviews get old pretty quick. I have no intention of doing all, or even most. . . . Two more, perhaps. Three at most. . . . I would like to have Bryan take part in all the interviews.” He ended up also doing interviews with Charlie Rose, the PBS NewsHour, and Pete Williams, turning away dozens of others. Alas, my own travel schedule precluded my participation in any of these.

  My coauthor was charitable enough to be concerned that I be accorded my due, even if I didn’t happen to be present. So he was sometimes extravagant in his praise. In the interview with Charlie Rose, for example, late in November 2012, he jeopardized his own credibility by saying: “Bryan Garner is a great man. He is the greatest philologist in the United States.”

  Justice Scalia and I didn’t get reams of mail about our books. Very little, in fact. People don’t write many letters these days. But we did get a few, and one especially pleased Justice Scalia. Jon A. Roberts of Oklahoma City, a nonlawyer employee of the Oklahoma Department of Environmental Quality, wrote a thoughtful page-and-a-half letter. He made two prominent points. First, he said he’d formerly believed in legislative or agency “intent,” but now he’d come to realize that trying to divine a “collective intent” for any legislative body or regulatory agency is futile: there might be as many different reasons for supporting a bill as there are members casting affirmative votes. Second, he’d had an epiphany about the so-called “Living Constitution.” If the Constitution changes its meaning over time, then who can possibly know what the law is at any given point in time? He quoted Justice Hugo Black, who once wrote, “Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.”41

  Justice Scalia felt moved to respond with a formal letter of his own. He said that the changes in Roberts’s thinking were exactly, “point-for-point,” what he and I had hoped to produce. It was also good to know, he said, that nonlawyers could also benefit from what we had written. He added that much of what we had said in Reading Law amounted to common sense.

  A Pain in the Back

  On Thursday, September 6, 2012, Justice Scalia and I were scheduled to give our debut presentation of Reading Law for the American Business Trial Lawyers in Los Angeles. Each of us flew in early that afternoon, and we met downtown at the Millennium Biltmore Hotel. There’s a huge banquet hall in the basement, where the Oscar ceremonies were held many times during the 1930s and 1940s. It was the same room where we’d presented Making Your Case in March 2009 to an audience of perhaps 500, and we knew the Los Angeles audiences to be warm and appreciative.

  When Karolyne and I checked in, we had a message from the marshals that we should go by their room across the hall from Justice Scalia’s once we got settled. When we reached the marshals’ room about 4 o’clock, they took us across to Justice Scalia. Karolyne and I were not pleased with the cramped room he’d been given, and we immediately saw that he was in quite some pain. His back had been bothering him since the Sunday before, he said, when he’d strained it doing yardwork. After reaching the hotel, he’d started having back spasms.

  “I can’t go on. I just can’t go on,” he said, clutching his lower back. “We don’t even know what material we’re going to cover.�
��

  “Not to worry, Nino. I’ve worked that out, and I have a sheet for you—if you’re able to go on. If not, I’ll do it solo.”

  “My back is just killing me!” He groaned with every move. “I just can’t do it. I can’t do it!”

  “Can you take ibuprofen? Remember? You took it after you fell in Providence.”

  “Yes, that’s no problem.”

  “Have you eaten?”

  “No,” he said, “not in a while.”

  “Let’s get some food in your stomach and then take the ibuprofen.”

  The lights in his room were bothering him, too, so Karolyne turned them off.

  One of the marshals ran down to the kitchen to get toast, butter, crackers, coffee, and sparkling water. Within ten minutes, he was back up—a kind of U.S. marshals’ room service, which was certainly more reliable and efficient than any hotel room service I’d ever seen.

  Meanwhile, Karolyne went down to the banquet hall to make certain that everything was set up—and to ensure that Justice Scalia’s chair for dinner and his stool onstage would be comfortable if he was able to appear.

  Justice Scalia ate two pieces of toast and two crackers, and then he took an ibuprofen tablet with sparkling water. He lay back on his pillow and asked me what we’d be covering in our talk. I told him that Caroline, my daughter in New York (by this time a lawyer), had prepared PowerPoint slides for the canons of construction, and that I had decided on one-third of the book that we’d cover. We’d go back and forth, as we had in all our joint presentations. We’d share the intro, I’d do the 1st point, he’d do the 2nd, I’d do the 3rd, and so on all the way through the 70th—though skipping much in the middle, especially the arcana. He made some adjustments to the plan, and then he dozed off.

  I sat silently in the half-darkness while he relaxed on his back, occasionally sighing. I was hoping that the ibuprofen would take effect and that he’d feel well enough to go on.

  After ten minutes, a light knock came at the door. Karolyne slipped in and whispered that she’d switched out the chairs so that he’d be more comfortable, and she’d also changed his menu. Instead of an endive salad, he’d be having minestrone soup, and in place of chicken he’d have pasta. Closer to comfort food, they would be easier on his stomach than the typical banquet fare. The banquet captain had said the kitchen didn’t have minestrone soup on the menu. She told him she hoped they’d manage to have two orders of minestrone soup ready for Justice Scalia if he needed it. Apparently the captain sent out for it—to an Italian restaurant down the street.