“I had to bring you kicking and screaming,” replied Justice Scalia. “You’re a bleeding heart.”
The bleeding-heart line was one that Justice Scalia frequently used after that event. He always said it with a smile, never a sneer, and audiences liked it.
For his part, Curriden faulted Justice Scalia’s stipulation that the event be unrecorded. He wrote: “Justice Scalia reportedly didn’t allow it. He didn’t want any television cameras or recording devices. Anyone claiming that a newspaper didn’t print a long enough article or didn’t publish Justice Scalia’s complete quote [he meant me, obviously] needs to first answer why they didn’t vigorously advocate for a full and public recording of the event.”
Fair enough, I suppose. Perhaps I was somewhat naïve about it, but I did encourage filming the event—just not very energetically. Justice Scalia said no. His policy was to disallow all recordings except when he had high trust in the organization, such as the Supreme Court Historical Society or the Newseum.
Curriden’s final point contained an insight that I hadn’t before fully recognized (in the final sentence of this quotation): “The event was terrific. Most of those attending got their first Bryan Garner experience, and they were overwhelmingly impressed. They also got to witness Justice Scalia at his best. Unfortunately, the benefits are forever limited to the 1,500 [the dean had told me 1,700] in McFarlin Auditorium last week. Justice Scalia is sometimes misunderstood. And some of those times, such as this, he has no one to blame but himself.”
Although I shared Curriden’s remarks with Justice Scalia and with Kathy Arberg of the Supreme Court’s Public Information Office, the no-recording policy remained part of Justice Scalia’s standard stipulations, with rare exceptions.
A Surprise in Chicago
In early April 2013, Karolyne and I were in Chicago for two nights before I was to teach a seminar. The first evening, we arranged dinner with my old friend Frank Easterbrook, chief judge of the U.S. Court of Appeals for the Seventh Circuit, which is based there. Because Karolyne wasn’t feeling well, Frank and I dined alone. Frank, of course, had written the foreword to Reading Law. He was such a thoroughgoing textualist that Justice Scalia had often said that if he could choose a successor for himself on the Supreme Court, it would be Frank.
Much to my surprise, Frank told me that evening that he’d be introducing Justice Scalia the next day at the Lawyers Club of Chicago. Justice Scalia was to discuss Reading Law. Frank said we’d be welcome to attend as audience members.
Later that night, after discussing Frank’s kind invitation, Karolyne and I decided we’d stick to our original plans and spend our day off at the Shedd Aquarium and the Field Museum. Frank’s invitation was necessarily last-minute because it was the merest coincidence that I was in the same city at the same time. Anyway, we resolved to relax instead. We slept in and had a room-service breakfast.
At 10:36 a.m., as we were finishing getting dressed to leave for the Shedd Aquarium, an e-mail came through on my phone. It was Frank: “Bryan: Nino’s flight has been delayed, and he may not make the lunch. Any interest in standing in for him and talking about Reading Law? Frank.”
“Of course! We must go!” Karolyne said. “This is the only time you’ll get to stand in for a Supreme Court Justice.”
We dressed again, this time in business attire, and arrived at 11:45 at the Union League Club, where the Lawyers Club was meeting. At the corner of Dearborn and Jackson, the Union League has one of the grandest ballrooms in America. Some 500 lawyers and judges were packed into the sumptuously decorated hall. During the meal, Frank was getting updates on Justice Scalia’s whereabouts every ten minutes or so from the U.S. Marshal’s Office. By the time I began speaking at 12:15, Justice Scalia’s flight had landed, and he was being whisked to the site. I had spoken about the Scalia–Garner collaborations for only about 15 minutes when out of the elevator, which was visible from the rostrum, strode Justice Scalia with a small retinue of marshals behind him.
“Here’s the great man now! I yield the floor,” I announced.
“Bryan!” he shouted boisterously from the back of the room as he headed toward the front. Everyone stood and applauded for a solid minute. He shook my hand, and Frank’s, hugged Karolyne, and took the lectern. I retreated to my seat at the table just in front of him. He spoke for about 20 minutes and then answered several questions with his usual verve. Afterward we autographed books together for about 30 minutes. At 2:30 he was off to the airport again. This kind of in-and-out trip was fairly typical for him. He was always much in demand, and he did his best to accommodate reasonable requests.
As he headed to O’Hare to fly to his next destination, Karolyne and I went to the Field Museum, musing over our unexpectedly eventful day.
Some Tosca Substitutes
Occasionally when I was in Washington, Tosca would be closed. Although Justice Scalia liked his regular places, he’d be willing to try something new with me. In 2013, after sessions in chambers, we tried two offbeat Italian restaurants—Obelisk and the Ristorante La Perla, an old-fashioned Italian restaurant. At Obelisk, on the second floor of a brownstone off Dupont Circle, seemingly none of the staff recognized my companion, even though Angela had made reservations under the name Scalia. But a father and son approached our table, and the father asked Justice Scalia if he could take a picture of the Justice with his son. Justice Scalia was usually happy to do this kind of thing, even in the middle of a meal. He never resented it.
At the end of our meal, during which we continued our conversation about the work we’d done that day, Justice Scalia noticed that he’d dropped red calamari sauce on his tie in two places. He did that kind of thing often, and he’d always become annoyed at himself.
“Dammit, I’ve ruined this tie. Once you take a tie to the cleaners, it’s definitely ruined. I’ve never gotten a tie back from the cleaners in good shape.”
“Neither have I. Why not try a Tide stick?”
“What’s that?”
“It’s a new device to remove stains.”
I’d learned of it recently from Karolyne. Remembering that I just happened to have one in my pocket, I tried to show him how to use it. One of the stains was too close under his chin for him to see it easily, so I got up from my side of the table, went beside him on the banquette, and applied it while he looked up at the ceiling.
“You’re sure this works?” he muttered with a funny grimace, eyes aloft.
“If it doesn’t, I think nothing will.”
“Okay. I’m trusting you.”
“You got some on your suit as well. Let me take care of that.”
“I’m a slob. I’m just a slob. Wait—you can use it on wool, too?”
“I do it all the time. Works wonders.”
Soon it was finished and dry, and he was all but incredulous that no traces of the stains were left. “Great device. Where can I get one?”
“Any pharmacy or grocery store. But here, take this one.”
“I don’t want to take yours!”
“I insist. I have two others in my travel bag. Lyne won’t let me travel without one. Seriously.”
“Well, thank you. This is really going to come in handy.”
As we got up to leave, a waitress from another station came up to me and said, “May I just say what a good-looking couple you make? You two look very happy together.”
“You’re funny,” I told her, smiling.
As we were preparing to get into the marshals’ car, I chuckled and told Justice Scalia what the waitress had just said. His only reaction was a loud, hearty “Ha!”
“Have you ever been to Second Story Books?” I asked.
“No. What’s that?”
“It’s my favorite secondhand bookshop in D.C.”
It was just across the street. Upon deciding to go, he told the marshals we’d be back in about 15 minutes. Inside, I showed him the law section and the rhetoric section, as well as some of the finer antiquarian books. “This is where I
do a lot of our research, Nino—used-book stores. It’s a great way to see whether we’ve covered all the bases. It’s a necessary supplement to university libraries.”
“This is quite a place. I didn’t know it was here.”
“Why don’t you find a book to take to Maureen?”
“I think I will!”
We browsed for five minutes or so. We both found a couple of books we wanted, and we paid and left. The marshals were waiting just outside to take him home. “Would you like a ride?”
“Sure.”
“What’s your hotel?”
“The W Hotel at 15th and F.”
“Very well.” Then he directed the driver to swing by the hotel to drop me off—a thoughtful convenience.
As usual, we talked about the day’s work during the five or ten minutes it took to reach my hotel. Whatever my hotel might be—the W, the Willard, the Mayflower, the St. Regis, or the JW Marriott—I’d typically know the doormen because I’d been frequenting these places for over two decades. I’d ask Justice Scalia if he’d like to meet James (or whoever the doorman might be). Every time he’d say yes. So I’d get out from the seat behind the driver, walk around the back of the car, hail James, and Justice Scalia would roll down his window. “James,” I’d say, “please meet Justice Scalia of the Supreme Court.”
“Good to meet you, James. Take care of this fellow!”
“It’s an honor to meet you, sir.”
Those interactions were a pleasure to him.
Some weeks later we dined at La Perla—Justice Scalia, Karolyne, and I had the place almost to ourselves at 6:00 p.m. We wanted an early dinner so he could get back home to Mrs. Scalia. Again, Angela had made the reservations under the name Scalia. Unlike our experience at Obelisk, here the managers and staff greeted us with no small fanfare. I must have heard the name “Justice Scalia” a dozen times before we were seated. Of course, he had long been revered in the Italian community.
“You know,” he said, “I never knew how much it would mean to Italian-Americans to have an Italian Supreme Court Justice. When I was nominated, the outpouring of support and sentiment was incredible. There were baskets and baskets of notes and cards. At first I told my assistant I wanted to read every one of them, but in the end that was unrealistic.”
“Did you continue reading a choice few?”
“Yeah, she’d pick out the best ones, and I’d read two or three a day for my first six months on the Court.”
“That doesn’t happen with every Justice,” I said.
“I don’t think so. For Italian-Americans, it was a matter of suddenly achieving real respectability. There had been a sense of shame within the Italian community over the Mafia, mob bosses, and so on. That’s what we were known for, primarily. With a Supreme Court Justice, the feeling changed. I was amazed at how much it meant to people. You can have an Italian governor, but he can be corrupt. A Supreme Court Justice symbolizes both integrity and intelligence. It was important to Italians.”
How to Succeed
Shortly after the dinner at La Perla, Justice Scalia and I were working once again in his chambers toward the second edition of Reading Law. He warned me that we’d have a 4:00 p.m. interruption. About five minutes before the appointed time, Angela came into the room and said, “Justice, the students are now in the Lawyers’ Lounge—ready for your 4 o’clock.”
“What is it, Nino?” I asked.
“Some high-schoolers from New Jersey. I have to give a little talk.”
“May I come along?”
“You want to watch?”
“Absolutely.”
“Okay. Then we can resume our work about 4:45. We’ll leave for dinner at 6:00.”
Angela handed Justice Scalia a thin folio, and we walked through the courthouse corridors to the portrait-adorned conference room known as the Lawyers’ Lounge—the very room where I’d interviewed him seven years before.
After the teacher leading this field trip introduced Justice Scalia to the students, he put down his folio (never opening it) and started in. He explained federalism in a nutshell, assuring the students that their state high court’s rulings affected their lives more pervasively than the rulings of the U.S. Supreme Court.
Then he said: “Let me ask you a question. What makes the American system of government so great? Why is it so widely admired? And how do the American people remain free?”
The students offered various answers, to each of which Justice Scalia gave the same answer.
“The Constitution?” No.
“The judiciary?” No.
“The presidency?” No.
“States’ rights?” No.
“The military?” No.
Everyone was stumped, but I’d heard this speech before.
“What makes our government so remarkable is a feature that our Founders built into it: the separation of powers! They wanted to ensure that no single person in government, and no single department of government, had too great a concentration of power. That’s the only way to prevent tyranny.”
He continued: “Our Constitution isn’t the best, if you judge it by its guarantees. Frankly, the old Soviet constitution was better, and it was full of all kinds of grand guarantees. Instead of our Fourth Amendment guarantee of protection against unreasonable searches and seizures, the Soviet Union’s constitution’s guarantees were much more explicit and extensive. For example, ‘Citizens are guaranteed inviolability of the person. . . . Citizens are guaranteed inviolability of the home. No one may, without lawful grounds, enter a home against the will of those residing in it. The privacy of citizens, and of their correspondence, telephone conversations, and telegraphic communications is protected by law.’ But this Soviet constitution was just a piece of paper: there was no independent judiciary to back it up.”
He paused, as if for dramatic effect, and then continued: “I wouldn’t trade our old Constitution for the Soviet constitution in a million years. A bill of rights has value only if the main articles of the constitution truly constitute the organs of government—establish a structure that will preserve liberties against the ineradicable human lust for power. It is the separation of powers that makes it impossible for any element of government to obtain unchecked power.”
The students listened with great interest. At the end, he took questions. One in particular elicited a great answer. “Justice Scalia, what do you think it takes today for a young person to succeed?”
“I think it takes what it’s always taken,” he answered. “Make a habit of excellence. No matter how menial or trivial the task before you may seem—whether you’re stapling papers or washing dishes or flipping burgers or painting a room—do your dead-level best. Do it excellently. If you do that with the little things, you’ll probably soon find that you’re getting more and bigger responsibilities. Then perform those with excellence. If you do this day in and day out, you’ll stand out from the crowd who are pleased with their own mediocrity; they do just what’s barely good enough. Your career will be better, and you’ll thrive. Just commit yourself to excellence in all things. That’s what I’d say.”
Karolyne’s Swearing-In
Karolyne had arranged to be sworn in on April 29, 2013, as a member of the Supreme Court Bar. That gray, rainy morning, we arrived at the Clerk of the Court’s Office at 9:15. General Bill Suter greeted us warmly and said that the Court would be announcing two decisions that day at 10 o’clock. Then I would move Karolyne’s admission.
“Normally,” General Suter said, “we go in alphabetical order. But not today. Karolyne will be first. It’s not often that Justice Scalia sponsors somebody.”
“I’m honored, General Suter,” she said.
“Bryan,” he said, “here’s the script. You can’t depart from it one jot. The only thing you can add are the two words my wife. You can say ‘my wife, Karolyne H. C. Garner.’ Otherwise, word for word. The Chief Justice insists.”
“No departure at all?”
“Not one syllab
le. You can just read it.”
“I couldn’t possibly just read it. I’m a professional public speaker. I don’t just read things. Besides, remember what Justice Scalia and I say in Making Your Case? ‘Never read to the Court.’ ”
“You’ll have plenty of time to memorize it. It’s not long.”
Other movants and candidates came into the room, and soon we were all being directed to go into the Court. I was seated at the front and center of the bar section, just behind the counsel table. Karolyne was seated to the left, near the press section to the Court’s right—close to Nina Totenberg.
The Clerk of the Court gaveled in the Justices and called out, “All rise. The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, oyez, oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”
“Be seated,” said Chief Justice Roberts. “Justice Alito will announce the decision in McBurney v. Young.”
Realizing I still hadn’t memorized my script, I took it from my pocket and started reading. I read it twice. Suddenly Justice Alito was finished speaking, and Chief Justice Roberts announced that there would be motions before the Court. He called out my name.
I stood, walked up to the lectern, and said: “I, Bryan A. Garner, a member of the Bar of the Supreme Court of the United States, hereby move the admission of my wife, Karolyne H. C. Garner, to the Bar of the Supreme Court of the United States. I am satisfied that the applicant possesses the necessary qualifications.”
“Thank you,” said the Chief Justice, calling the next movant. As I left the lectern, Justice Scalia and I exchanged smiles and nods. Then I looked at Justice Ginsburg, who smiled with her eyes and nodded at me.
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