I told her, “We’ve become so close that he’s like an uncle to me.”43
She mentioned an instance in which Justice Scalia had lamented the poor grammar of flight attendants. Unsurprised, I told her: “If you think that certain minimum standards of behavior are good and important, then when people fall below these standards it’s disappointing—not in an officious way, but you wish it were otherwise.”44
Citing the example of how irritated Justice Scalia and I both get at men wearing their hats while eating in restaurants, I blamed our parents for inculcating in us both the bedrock idea that this is absolutely forbidden behavior—a badge of sheer boorishness. And I noted that he and I rubbed off on each other, or at least he did on me: “Garner’s wife says he gets more curmudgeonly after spending time with the Justice.”45 Karolyne always said that not resentfully, but affectionately.
I tried to end the interview on something less hopeless than completely pessimistic resignation. I was trying to explain an attitude that Justice Scalia and I shared: “The world changes. Of course the world changes. But that doesn’t mean all change is good. I think a lot of change is retrograde. That’s the definition of a curmudgeon: someone who says harrumph about changing social conventions.”46
A Second Dallas Visit
The following month, in January 2013, Justice Scalia came to Dallas for a joint lecture we were to deliver at SMU. The trip was the first of several times he stayed with Karolyne and me at our house. We knew, of course, that breakfast was important to him, and in preparation Angela mentioned to Karolyne that he would often have a bagel or muffin after reaching the office. We stocked up with pastries, bagels, and a pie—together with plenty of coffee.
After our first breakfast together, Justice Scalia told me how dissatisfied he was: “I need a full American breakfast! I need eggs and bacon and toast!” He wasn’t angry so much as disappointed, and I appreciated his willingness to be candid.
After that misunderstanding, Karolyne and I—who both normally skipped breakfast in those days—made a full breakfast each of the two remaining days. As I was cooking over-easy eggs the second morning, Karolyne was frying the bacon and making toast. Justice Scalia was standing right between us in the kitchen, scrutinizing my technique.
“Bryan, those eggs are looking good, but you’re not timing this well at all!” he said.
“What do you mean?”
“By the time the bacon’s ready, your eggs will be cold. You have to time your cooking just right. That’s something Maureen is great at.”
“Okay, Nino. I’ll eat these eggs cold and have another fresh batch ready for you as soon as the bacon and toast are served.”
“Good. That’s better,” he said with a chummy smile.
He and I were equally amused by our playful banter in the kitchen—and the intrinsic humor in the roles we were playing as he supervised my egg-frying technique. Soon we were enjoying a delectable breakfast that gratified us all.
Several events had been scheduled for this trip: an SMU-sponsored party at our house; a Scalia talk with foreign law students; the keynote event, a joint lecture in McFarlin Auditorium, the largest venue on campus; a Scalia talk at a constitutional-law class; and a dinner with the Dedman family, the greatest benefactors to SMU Law.
About 100 local lawyers and judges attended the cocktail party at our house. The marshals had vetted our list of invitees. It was a festive event: people were excited to be able to meet and chat with Justice Scalia, and many enjoyed seeing my library for the first time. But one prominent local lawyer was a little boisterous when she arrived late in the evening. She walked into the library and loudly proclaimed, “I paid for this! I paid for this library!”
A little taken aback, I stood by as someone asked her what she meant. “I hired Bryan Garner to lecture at my department, and we paid his big fee! So I paid for part of this library!”
Her husband seemed to be trying to rein her in, so I decided to leave the room and find Justice Scalia, who was on the back porch enjoying a cigar with two of our other guests. He suggested that I have one. We had a chuckle when I recounted what had just happened in the library. Midway through our cigars, she found her way out to the patio. I warned him as she approached, and within moments she was accosting Justice Scalia with aggressive questions. “How can you explain Bush v. Gore?!”
“I explained it in my opinion,” Justice Scalia said. “Go read it.”
“You don’t represent me!” she said loudly and sloppily. “Your vote doesn’t represent me!”
“What do you mean?” he asked, growing noticeably disdainful and impatient.
“You’re supposed to represent everybody, including me, on the Court, but you do a lousy job representing me.” Now she was getting even more careless in her posture and demeanor.
“My job,” Justice Scalia said patiently, “isn’t to represent you or anyone else. I represent the law. I don’t have a constituency.”
“I think you should represent my voice!”
“This is tiresome,” he said. “It’s getting late.” He put out his half-smoked cigar.
Fortunately, the woman’s husband swooped her away, and she was soon out the front door.
“Is she actually a lawyer?” Justice Scalia asked me.
“Yes, believe it or not. She’s fairly prominent.”
“It’s hard to believe.”
“I know. Believe me, she wasn’t on my invitation list. She must have been invited by somebody else. Nobody could have predicted that.” I was sure he’d seen much worse.
Changing the “Living Constitution”
The next afternoon, we were at my kitchen counter preparing for our big event at McFarlin Auditorium. It was to be a packed house, and we planned to cover all 70 sections of Reading Law, from beginning to end in nearly two hours without intermission. I made a suggestion to him: “Nino, I think you should stop criticizing the Living Constitution.”
“What?!”
“I just mean the term. Find another name for it.”
“But everyone calls it the Living Constitution.”
“I know. But it was a name chosen by your intellectual enemies, and it advances their cause. In the early 1960s, William O. Douglas wrote a book called The Living Bill of Rights.”
“So what’s the problem?”
“You lose the debate in the minds of the American people. They don’t want the opposite of a Living Constitution.”
“I’ve sometimes joked,” he said, “that the Constitution is dead.”
“Right. And that joke is turning people against you. Remember section 21 of Making Your Case?”
“No. What?”
“Control the semantic playing field,” I reminded him. “Names have power.”
“How so?”
“ ‘Living Constitution’ is just a euphemism for a Constitution that morphs year by year without amendment. It’s the euphemism devised by people who tout it—your nemeses.”
“Are you saying I’ve made a mistake over the past 30 years by using their terminology?”
“I do think so. You’ve sometimes called it the ‘Evolving Constitution,’ which is better, but you usually say ‘Living Constitution.’ And that’s the term we used in Reading Law.”
“Yes, it is,” he said.
“If you asked the American people whether they’d rather have a stable Constitution or a highly volatile one that morphs without amending it, what would they say?”
“Stable, no doubt,” he said.
“Right. I suggest that, from this day forward, you stop attacking the Living Constitution. Attack the Morphing Constitution instead.”
“I don’t like the word morph. It’s newfangled and tendentious. How about the Changing Constitution?”
“That’s much better. Can we change all the references in Reading Law?” I asked.
“Let’s have a look.”
We sat down and examined all the references in the book to “Living Constitution,” and we both tho
ught the passages read much better with “Changing Constitution.” We agreed to make those edits in the second edition.
“I can’t believe I’ve never thought of this before,” Justice Scalia said.
“It’s a subtle point how names can affect a public debate,” I said. “Think of pro-life vs. pro-choice or anti-life vs. anti-choice. As we say in Making Your Case, if you can get your adversary to use your terminology, you’re often halfway home to winning the argument.”
That evening, I paid close attention to what Justice Scalia said when we were talking about the fixed-meaning canon. Naturally so, given our talk earlier in the day. I remember it distinctly: “I used to say that the Constitution is not a living document. It’s dead, dead, dead. But I’ve gotten better. I no longer say that. The truth is that the Constitution is not one that morphs. It’s an enduring Constitution, not a changing Constitution.”
We stayed late in the auditorium that night to sign books as audience members formed a long line, coming up to us on stage left and exiting stage right. It was another assembly-line autographing of books on the half-title page without inscriptions. Because it was a Dallas audience and I knew many of the attendees, I briefly introduced those I knew to Justice Scalia. Good-naturedly, he called me (once again) Chatty Cathy. He was in high spirits.
On our way home with the marshals, I asked, “Would you like a glass of grappa on our back balcony? The weather is beautiful tonight.”
“That would be lovely,” he said. “Do you have any cigars?”
“No, I’m out. Let’s stop and get some. Lyne, would you like a cigar as well?”
“I don’t think so, no. But I’ll join you on the balcony.”
I asked the marshals to make a quick stop at Pogo’s, a liquor store, and got two cigars while Justice Scalia and Lyne waited in the car. When we reached the house, we saw that two marshals had already established their watch in the front yard—or perhaps they’d been there all the time we were away.
Soon all three of us were upstairs on the back balcony, toasting our friendship and looking out on the lighted pool in the backyard. Justice Scalia had to show me how to get my cigar going because I’m pretty unfamiliar with the practice. Soon I was coughing as I took my first puffs—prompting from Justice Scalia some mischievous glee.
“That was quite a performance you two gave tonight,” said Karolyne.
“I certainly enjoyed it,” said Justice Scalia. “Just look at this view back here. That’s an enormous backyard.”
“It’s unusual for the center of Dallas,” I said. “There are eight of these big lots on our street. I’ve wanted to have one since the early 1990s.”
“And now you do,” said Justice Scalia. “Do you trim all those hedges yourself?”
“Oh no,” I said. “I couldn’t possibly.”
“I like to do my own yardwork,” he said. “I mow my own grass and clip my hedges.”
“I know. Every time I call you on a Saturday afternoon, Maureen says you’re out working on the lawn.”
“I just love it.”
“Bryan’s contribution,” said Karolyne, “is murdering weeds in the drive. He loves spraying weed-killer on the little weeds coming up between the bricks.”
“Oh, that is fun,” said Justice Scalia. “Say, Lyne, how long have you been a lawyer?”
“Since 2006,” she said.
“Why don’t you become a member of the Supreme Court Bar? You could come up for the swearing-in. It’s a beautiful ceremony.”
“Actually, the Clerk of Court, General Suter, said something about it last year. He offered to sponsor me.”
“I’ll tell you what. I’ll sponsor you. Bill Suter can be my cosponsor.”
“Wow,” she said. “What an honor, Justice Scalia. You can do that?”
“Of course. It would be my honor to do that. We’ll arrange for a day before the end of the term.”
“It’s General Suter’s last term,” she said.
“Oh, that’s right. Let’s do it in April or May while he’s still Clerk.”
“That’s so kind of you to think of it, Nino,” I said.
“You’ll have to move her admission, Bryan,” said Justice Scalia. “Neither Bill Suter, as Clerk of Court, nor I, as a Justice, can do that. How long have you been a member of the Supreme Court Bar?”
“Twenty years, I think,” I said.
“Didn’t you like the ceremony?” he asked.
“I didn’t attend, I’m afraid. I regret that. This will be my first participation in the ceremony.”
“Oh, you should have gone. When Lyne does it, I’ll have you both back to chambers afterward. We’ll toast the newest member with Champagne. That’ll be fun.”
“Thank you, Justice Scalia,” said Karolyne, a little choked up.
“More grappa?” I asked.
“No,” said Justice Scalia, snuffing out his cigar. “We should call it a night. I have to teach tomorrow.”
And teach he did the next day at SMU: an hour on comparative law with foreign students, an hour on administrative law, and a late-afternoon hour on constitutional law. Each hour was brimming with fascinating observations. In comparative law, he said: “Just as you don’t understand your own language until you study a foreign language, you don’t understand your own legal system until you study another.” He added that the big difference between common-law countries and civil-law countries, such as those of Europe and Asia, is that common-law judges aren’t career bureaucrats who swallow everything that the government does. And then a frisson for the French: “French judicial opinions are bloodless and dull: no intelligent person would want to read them.”
The theme for the administrative-law class was that “there’s no such thing as government by experts.” He said that the “headless fourth branch of government”—the collection of federal agencies—isn’t really headless at all: it’s run by Congress. Apropos of something, he quoted Chief Justice Rehnquist’s view as being, “Don’t worry too much about the wording of the holding. Just make sure the judgment is correct. We’re not going to pay attention to the holding in the next case anyway!”
In the constitutional-law class, many of his comments were quotable:
• “The cases I’ll fall on my sword for are the structural cases, involving separation of powers.”
• “I couldn’t care less what a legislature intended. I care what they adopted.”
• “Sign me up for original meaning. I urge you to abandon original intent.”
• “God does natural law. I do American law.”
• “The only way to run a sensible judicial system is a government of laws—what does the text say?”
At one point, he brought up New York Times v. Sullivan,47 the freedom-of-the-press case that established the actual-malice standard for defamation claims by public figures. He said it was an example of judge-made law that was flat wrong. I then spoke up and asked whether it should be followed by later Courts, even though it was initially wrong. “Yes,” he said, “I think so. That’s our system of stare decisis, and there are all sorts of people who now rely on that holding.”
I stayed with him throughout the day. After a faculty lunch, we decamped in a faculty lounge and napped before the final class. The lectures were impromptu but well-thought-out, as he’d given versions of them dozens of times. He particularly shone, though, when responding to questions. He always had the audiences laughing, at least as much because of his own risibility when delivering his lines as because of the iconoclastic nature of the utterances.
“Dead, Dead, Dead” Comes Back to Life
The next day the Dallas Morning News ran an article about the event two nights before. It quoted Justice Scalia as saying about the Constitution: “It’s not a living document. It’s dead, dead, dead.” End of quotation. When we saw that after breakfast, we weren’t happy about it. I told him I’d write a letter to the editor objecting to the mischaracterization. (See the bottom half of page 202 for the actual words.) Wh
en I did write the editors, though, things still weren’t put entirely aright.
After reading my letter the next day, Justice Scalia wrote to say that it should make the editors blush, adding: “Apparently the print media in Texas are as biased as the print media elsewhere.” He said he enjoyed his stay with Lyne and me and thanked us. Nothing about the controversy had soured his experience: “I thought our presentation was the best. Regards. Nino.” More than three weeks after the misleading story, the Morning News (page A2) ran an anodyne “correction”:
An article in the Jan. 29 Metro section misspelled the name of a new book by U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner. It is Reading Law: The Interpretation of Legal Texts. The article quoted Scalia as calling the U.S. Constitution “dead, dead, dead.” He went on to say he believes it is not a document that “morphs” but rather an “enduring” one.
The new item still didn’t give the words with which he had prefaced “dead, dead, dead.”
When I sent the “correction” to Justice Scalia, he responded curtly: “A pox on all of them!”
Some of the later reporting of the event, meanwhile, was much fuller and more favorable. I had been wrong in thinking that only one news outlet had been present. Mark Curriden, a noted legal reporter with the Texas Lawbook, covered the event and wrote a pretty thorough piece. Fortunately, he quoted snatches of the unfilmed repartee:
While the book is good, the live version of Justice Scalia and Garner was so much better. For more than 90 minutes, the duo talked about whether roosters are animals, death-ray technology, whether the Constitution is living or dead and a lengthy discussion of what the meaning of “into” is. . . .
“My political beliefs are greatly different from Justice Scalia,” Garner told the audience, receiving a splattering of applause. “I deplore the Second Amendment. I’m in favor of gun control. I favor gay marriage. Still, we worked through 700 decisions, and we have yet to find a single decision on which we disagree with each other.”
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