Karolyne left again, and I worked quietly at the computer to perfect our slide presentation and to rehearse precisely what we’d be covering so that I could prompt him, if necessary, while onstage. When I finished, he was still dozing, but his groaning had subsided. I glanced at my watch. It was 5:30. The cocktail hour was to begin at 6:00, with seating at 7:00.
“What time is it?” he asked, as he was rousing himself.
“Right about 5:30. How’s the back?”
“I think it’s better.” He sat up on the side of the bed with little or no apparent pain. “Yes, I’m much better.”
“You sound better to me. Let me show you the PowerPoints and this sheet I’ve prepared so you’ll know which points you’re covering.”
“Good. Thank you.”
We prepped, and he said he felt comfortable with the talk.
“This’ll be more fun, I think, than Making Your Case,” I said.
“I think so, too,” he said.
“Are you sure you want to go forward?”
“Yeah, let’s do it.”
“Do you need my help getting dressed?”
“Of course not!”
“Okay. Just checking. Our room is down the hall. I’ll be back here in 15 minutes, and then we’ll head down.”
Karolyne and I got dressed and went back by his room, where he was putting on his cuff links. Soon he was all spiffed up, hair combed, and we trekked down to the banquet hall with our entourage of marshals. As we got closer, of course, people recognized him, and he was drawn into conversations, just as were we. Karolyne kept a close eye on him and, without letting him be distracted too long by well-wishers, took him to the head table, where he was seated beside his (and my) old friend Judge Alex Kozinski, who was then chief judge of the Ninth Circuit. Born in Bucharest, Romania, Judge Kozinski came to the United States in 1962, at the age of 12; grew up in Los Angeles; attended UCLA for both his undergraduate and law degrees; clerked for then-Judge Anthony Kennedy of the Ninth Circuit and later Chief Justice Warren Burger; served in the Reagan administration as the first U.S. special counsel; and was soon elevated to judgeships. Although he retains a thick Romanian accent, his command of the English language is second to none, and his sardonic humor leavens both his writing and his conversation. So our dinner that evening was filled with interesting discussion. Judge Kozinski became subdued, though, when I told him of Justice Scalia’s difficulties with his back.
Soon we were being introduced by David Battaglia, my old friend who had arranged the entire event. He had introduced us wittily three years before in the same banquet hall. Again, he had prepared an amusing setup, this time involving numbers:
• 5–4 (no, not a reference to a Supreme Court vote, but the number of boys versus girls that Justice Scalia had fathered);
• 51 (the number of anniversaries since Antonin Gregory Scalia had wedded Maureen McCarthy after they met on a blind date at Harvard Law School—“and don’t forget,” David added, “next Monday is 52”);
• 18 (no, not the drinking age when Justice Scalia was a Georgetown Hoya, but the number of years since Bryan Garner had become editor in chief of Black’s Law Dictionary);
• 75 (no, not anyone’s age [Justice Scalia was 76], but the number of attorneys that were at the law firm of Jones Day when Justice Scalia joined it in 1960);
• 98 (the Senate vote on Justice Scalia’s confirmation to the U.S. Supreme Court in 1986, at 98–0);
• 13 (the number of sets of procedural rules that Bryan Garner had revised, with the blessing of the courts and Congress);
• 1491 (the date of publication of the oldest law dictionary in Bryan Garner’s collection);
• 236 (the number of dissents that Justice Scalia had written, among over 750 opinions—by contrast with Justice Oliver Wendell Holmes, who wrote only 173 dissents);
• 20 (the number of books written by Bryan Garner);
• 1 (Justice Scalia as the longest-serving Justice on the Supreme Court, with 9,473 days under his belt).
“And so we are pleased,” David concluded, “to welcome both of them here to Los Angeles to speak about their new 567-page book, which the Wall Street Journal commented is ‘remarkable’ and ‘reshapes the long-running debate about what it means to be a judge and the very role of law in our polity.’ ”
As we ascended to the stage and took our positions, I told Justice Scalia that perhaps we’d better stand instead of using our stools. Amid the standing ovation, he agreed, and I made sure that he was comfortable with the height of the music stand for his notes.
Then, as the applause died down, I began: “Thank you, ladies and gentlemen, for what will be the world-premiere presentation of our new book. It’s an honor for both of us to be here for this special evening. It’s really quite extraordinary that Justice Scalia is on this stage at all. I hesitate to tell you this, but only two hours ago, it looked as if he wouldn’t be able to emerge from his room—so excruciating was his back pain. I keep telling him he shouldn’t do his own yardwork. But he’s better now, and he’s here, and let’s give him another hearty round of applause.”
I had told the crowd about Justice Scalia’s condition only to hedge against the possibility that his participation might be cut short if another back spasm caused him to have to leave the stage. I wanted to anticipate any rumors that might arise if that did happen. We smiled at each other, and he winked, as the crowd clapped. I saw a little sweat on his brow.
We began by explaining the three competing views of legal interpretation: textualism, which considers the words of a statute paramount and therefore closely analyzes the text, its structure, and its purposes (but only as purpose can be understood from the text itself); purposivism, which, although it considers the words, allows consideration of the legislature’s broader purposes in enacting a statute to color or even override its words; and consequentialism, which considers of paramount importance neither the words nor the purposes but the real-world consequences of a given interpretation, and whether those consequences comport with wise policy. As Justice Scalia pointed out, purposivism is badly named, since textualists do take account of a statute’s purpose; it’s just that purposivists go outside the text of the statute—for example, looking at legislative history—to find purpose. But he said although it’s a misnomer, purposivism is the standard term in legal circles.
“All statutes,” he said that evening, “have as their purpose the promotion of good and the deterrence of evil. But if you take ‘purpose’ at the highest level of abstraction, or you allow judges to weigh consequences, then you substitute the judge for the legislature. You make the judge into a policy-maker, and the whole balance of government is shifted.”
Our foundations having been laid, we traded points—just as we always had in teaching Making Your Case. (But we reversed the order: for Reading Law, he wanted me to take the odd-numbered sections so he could have the even-numbered ones.) He was in good form that evening, gesturing with great animation, orating with verve, and good-naturedly taunting me—all to the audience’s delight. He was obviously enjoying this subject matter more than I’d ever seen before. His adrenaline had kicked in, and the back pain seemed to have vanished.
“Let’s take questions,” he said at the end. “I’m sure there are questions.”
One of the questions had to do with something that almost always puzzles people: what is the difference between textualism and originalism? “Textualism is the much broader doctrine,” Justice Scalia answered. “It says that a judicial interpreter should be guided by the text, structure, and purpose of a statute. Originalism is simply a gloss on textualism: it says that the statute—by which, you understand, we mean any enacted text—the statute must be understood as it would have been understood by competent users of the language at the time of enactment.”
I chimed in: “Originalism rarely comes up—perhaps in 1% or 2% of the cases, most often in constitutional cases. Textualism, by contrast, comes up in every single instanc
e of judicial interpretation.”
Justice Scalia took over again: “As we say in the introduction, every judge is a textualist. All judges say, ‘We look first to the text of the statute.’ Those who say that usually end up going far afield. [laughter] A pure textualist begins and ends with the text.”
When we were finished, we received another standing ovation—or, rather, he did, and I just happened to be standing on the stage with him. Afterward, various audience members came up to thank and congratulate us. Somebody told me we resembled a comedy duo made up of Don Rickles and Kelsey Grammer—which seemed an apt comparison.
We had been finished barely five minutes when Karolyne came to tell me she was concerned about his back. I went over to him and said, “Nino, let’s get you to your room!”
“No! Come with me. Get Lyne. We’re going in the car.”
“What?”
“Don’t ask questions. Just come with me. The marshals are taking us.”
Once we were in the car, he told us: “We’re going to see Placido Domingo. He’s expecting us at the Los Angeles Opera.”
“You’re kidding me,” I said. “He’s just meeting us there?”
“No. It’s a dress rehearsal for the Verdi opera The Two Foscari. Placido has the lead, and it’s a closed rehearsal. But he wants us to come.”
“You know him?”
“Of course I do. We’ve met. I’m an opera aficionado, and he’s the greatest tenor ever.”
“How’s your back?”
“I’m just fine. No pain at all.”
“I hope you don’t mind what I said at the outset of our presentation.”
“Not at all,” he said. “You did just right.”
“This is exciting,” said Karolyne. “I can’t believe we’re going to meet Placido Domingo.”
It turned out that an L.A. lawyer named Don Erik Franzen, an L.A. Opera board member, had attended our event that evening. He had called ahead to the opera to see whether Domingo would like to have Justice Scalia come over. The answer, of course, was yes because the two had known each other for some time. Franzen had introduced himself after the presentation and told Justice Scalia about the possibility of attending the rehearsal. The whole thing had been instantly arranged, and soon we were being ushered to the opera.
We met Franzen at the opera house and walked in as the dress rehearsal was in progress. It was a stunningly good performance—and, essentially, a private one. After an hour or so, the performers took a break. Domingo came into the audience to meet us all, and he and Justice Scalia exchanged warm greetings. It turned out that Domingo’s wife, Marta, had been sitting right behind us, and she was as happy to see her distinguished guest as her husband was. After a 15-minute visit, Justice Scalia declared that he must get back to the hotel to sleep a little before his early-morning flight back to Washington. On the way back, he remarked that he was relatively pain-free. He thanked us both for all that we’d done that day. We all agreed that it had been a day like no other.
The Posner Book Review
Less than two months after the release of Reading Law, Judge Richard A. Posner of the Seventh Circuit in Chicago published a lengthy review in the New Republic under the title “The Incoherence of Antonin Scalia.” The insulting title was intended, I suppose, to mirror an article in the same publication from five years before: “The Arrogance of Justice Anthony Kennedy.” But with the Scalia piece, the dignifying title “Justice” was omitted.
The gist of Judge Posner’s criticisms I would never have predicted. I had been certain that he’d argue that although Scalia and Garner array an impressive number of authorities, they chase a formalist will-o’-the-wisp in thinking that legislative words can ever result in such a degree of linguistic determinacy that judicial discretion is much constrained. I thought he’d say that the open-textured nature of language makes it necessary for judges to engage in glossing statutes and even nudging them toward the better policies that judges, with the benefit of hindsight, can perceive (as opposed to legislators, who work only with foresight).
Instead, he took a tack that I’d have thought impossible: in what my colleague Tiger called a “hysterical outburst,” he accused us of writing a book that was riddled with errors and misrepresentations of the cases we discuss.
When the New Republic asked me to respond, I welcomed the opportunity. It was a lengthy response in which I detailed some of the fact-checking lengths to which my staff and I (as well as Justice Scalia) had gone. I mentioned that I’d had four lawyer–colleagues at LawProse undertake extensive fact-checking, and I argued that the allegations of error were themselves false.
In further response to this, Judge Posner essentially accused me of lying about my fact-checking protocol (“I have trouble believing Garner”)—and wondered why I hadn’t mentioned my lawyer–colleagues in the acknowledgments. In fact, they were all listed there as my colleagues but not identified as lawyers. I was astonished at how quickly the whole affair descended into incivility.
In a telephone call with Justice Scalia, he could tell how unhappy I was about the brouhaha. He acted mildly surprised at this.
“Nino, he’s called me a liar.”
“You’re mad at him?”
“Of course I am. He called me a liar about something that’s easily verifiable.”
“Don’t you ever say ‘Our Father’?” (Of course, in this conversation, I couldn’t see the capitals and the quotation marks.)
“What do you mean?”
“Don’t you ever say ‘Our Father’?”
“You mean the Lord’s Prayer?”
“Exactly. Forgive those who trespass against us. Forgive him.”
“Of course I’ll forgive him, Nino, in time. But right now I’m feeling indignant. I never imagined he’d resort to an argument like sloppiness or dishonesty.”
“I’m telling you, you’ll be happier if you just forgive.”
More Work, More Invitations
Invitations to make joint presentations of one or the other of our books rolled in pretty steadily. During these years, Justice Scalia and I spoke jointly at more than 40 events across the United States and Asia. His onstage personality was typically warmer when we were together than when he was at a lectern alone: we could engage in banter, and I could evoke humor from him. When he was solo, he tended to read speeches, and he was often placed at some remove from the front of a stage—sometimes 35 feet from the closest audience members—making him seem a distant figure. Like any other speaker suffering from poor stage management, he was at the mercy of event organizers. When we appeared together, Karolyne would always check the stage setup on-site beforehand, including lectern placement, stools, music stands, water within easy reach, and lighting. Her attention to these subtle details made our events go smoothly in all sorts of noticeable ways—and in other ways that were more subliminal.
When we spoke together for the Supreme Court Historical Society, our lecterns in the Supreme Court chamber were separated by only two inches. We’d never been standing quite so close. Much to the audience’s delight, Justice Scalia elbowed or nudged me a couple of times when he took mild issue with something I’d said, which of course got both of us laughing. He really seemed to like the physical proximity. From that point on, we’d ask to have our lecterns all but touching (without adding the explicit rationale that this would enable him to elbow me at will). The Historical Society event was supposedly filmed by C-SPAN, but I’ve never seen the film, and it was never broadcast.
Lawyer groups often tried to use me as a conduit to Justice Scalia. That was understandable, I suppose. Most would invite us jointly, but we all knew that the entire event hinged on whether Justice Scalia would accept.
Interestingly, the only hitch that ever came up in the negotiations was from one of Justice Scalia’s former law clerks who questioned Karolyne’s requests for Justice Scalia. First class for the Justice?! Why?! A suite in a hotel?! Why?! And on and on. The former clerk overcame his initial resistance. But
he remained stubborn about wanting to remain onstage after introducing us. Our settled practice was to take the stage and handle the presentation ourselves—even questions from the audience, which I’d field. But this former law clerk wanted all the onstage exposure he could get. (Actually, this wasn’t uncommon.) In the end, Karolyne insisted that he must leave the stage after the introduction, and he reluctantly agreed to do so. If he hadn’t, he’d have been nothing but a distracting unused prop.
Fellow Curmudgeons
For some reason I can’t recall, in December 2012 I sent Justice Scalia an e-mail asking an autobiographical question. I was perhaps curious about what influences led him to textualism when I’d never heard him talk about this or that professor who professed such an approach. So I asked him what, in his background, made him a textualist.
He paraphrased my “silly question”: “What made you believe that a text means what it says?” After all, no one ever asks, “Why do you use a glossary for Shakespeare?” What needs explaining, he said, is what makes anyone a nontextualist. If the nature of textualism weren’t enough, of course, “one would be driven to textualism by the chaotic and undemocratic consequences of all other approaches.”
That same month, a reporter with Business Insider interviewed me for a piece she was writing on my friendship with the “famous curmudgeon.” Her lead was appropriate: “Bryan A. Garner, a lawyer and writer, and Justice Antonin Scalia are, on the surface, an odd pair of friends. Garner is pro-choice and supports same-sex marriage, while Scalia is a conservative Catholic whose comments about homosexuality have outraged gays. But the two became tight after collaborating on two different books about the law.”42
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