Once all the motions had been made, the Chief Justice administered the oath to all the applicants collectively, saying: “Please repeat after me. ‘I,’ state your name, ‘do solemnly swear . . . that as an attorney and as a counselor of this Court . . . I will conduct myself uprightly . . . and according to the law . . . and that I will support the Constitution of the United States.’ ” He then pronounced them members and congratulated them.
A marshal approached me with a handwritten note from Justice Scalia asking us to join him in chambers afterward for a Champagne toast. As usual, Angela met us at the Marshal’s Office and took us back to chambers.
“Congratulations, Lyne!” Justice Scalia greeted her.
“Thank you.”
“Excellent job, Bryan! Is that your first appearance before us?”
“Yes. I must say, it all happened very quickly. I had only about 60 seconds to memorize that motion.”
“You did fine. Listen, Lyne, isn’t Veuve Clicquot your favorite Champagne?”
She lit up. “It is. I’m flattered you remembered.”
“I brought a bottle with me this morning. We’ve been chilling it, and I think it’s cold enough.” Raising his voice, he said, “Fernando—please bring in the Champagne!”
Angela walked in. “Justice, Professor and Mrs. Abraham are here as well. And the Court photographer.” In walked the venerable law professor Henry J. Abraham, then 91, and his wife, Mildred. He had taught with Justice Scalia years before at the University of Virginia Law School. This was the first time Karolyne and I had met them.
Fernando brought in five glasses with the chilled Champagne. Justice Scalia uncorked the bottle and carefully poured the glasses, serving the women first. When all the glasses were filled, he raised his, saying, “To Karolyne H. C. Garner, the newest member of the Supreme Court Bar.” Everyone clinked glasses. Steve Petteway, the Court photographer, documented the celebratory event.
“Thank you, Justice,” said Karolyne, obviously moved. “This is an honor. And thank you for the Champagne.”
“Happy to do it,” he said with obvious pleasure. “Oh, I have something for you.” He went around to his desk and picked up a Supreme Court notecard on which he’d written with a fountain pen: “April 29, 2013. To Karolyne Cheng Garner—Admitted to the Bar of this Court on this date. Warm congratulations. Antonin Scalia.” She got tears in her eyes when she read it, hugged him, and thanked him again.
“So what’s next for you two?”
“We’re off to L.A. at 3 o’clock,” I said.
“Really? You don’t have time for lunch?”
“I’m afraid not.”
“That’s okay. I have opinions to work on. You flew in just for this?”
“Yes,” said Karolyne. “It was the only day we had available before the end of the term—while General Suter was still the Clerk.”
“What’s going on in L.A.?”
“I’m teaching a seminar for a law firm tomorrow.”
“Boy, you must rack up those airline miles.”
“Bryan’s at nine million miles now with American Airlines,” Karolyne said.
“I don’t know how you do it,” he said, shaking his head.
“You travel a lot, too, Nino, with all your speeches. Are you ever going to slow down?”
“I doubt it. I hope not.” He beamed.
Hecht Yes!
Justice Scalia and I saw each other a couple of times during the summer of 2013. We made presentations on Reading Law in Washington and Brooklyn, and we spent some time in August working in his chambers on the second edition.
On September 10, Governor Rick Perry promoted our friend Justice Nathan Hecht of the Texas Supreme Court to chief justice. Shortly after, I received a call from Justice Hecht to ask whether I could help enlist Justice Scalia to travel down to Texas to swear in both him and Justice Jeff Brown, who were being installed at the same time. The scheduling was flexible, he said, according to Justice Scalia’s calendar.
When I called to ask, Justice Scalia enthusiastically accepted the assignment, and we blocked out November 11. He would fly into Austin on the 10th, we’d have dinner, and then the swearing-in would be the afternoon of the 11th. As it happened, the new chief justice arranged for a dinner at a steakhouse the night before, with Justice Scalia, members of the Texas Supreme Court and their spouses, Karolyne, and me. Our group had a private room. It was a long festive evening—the kind that flies by despite efforts to savor every moment.
The next day, in the packed chamber of the Texas House of Representatives, Governor Perry introduced Justice Scalia, reading a prepared speech. He pronounced the first name as “Antone”—a mispronunciation reminiscent of President Reagan’s introduction of “Antoine Scalia” when he nominated him to the Supreme Court.
In response to a note I wrote him that afternoon in which I mentioned Governor Perry’s mangling of his first name, Justice Scalia wrote to me: “I really liked Governor Perry, despite what he did to my first name. Maybe that is just one of many respects in which he resembles the Gipper. Too bad he screwed up the presidential run so badly. I’m afraid it’s irreparable.”
A Word About Introductions
Over the years, Justice Scalia and I had many introductions—more than 40 of them. He liked them short and sweet, and he’d get restless and impatient if they dragged on, as they typically did: “Justice Scalia truly needs no introduction,” followed by “He was born in Trenton, New Jersey . . .” and then a detailed excursus. If it was to be a long intro, it could be justified only by wit, as with the Battaglia introductions quoted earlier.
Judge Carlos Bea gave us a fascinating introduction in San Francisco on August 21, 2013, by reporting some data on Reading Law. During its first year in print, the book had been cited in 74 appellate decisions. By contrast, he said, a book on the same subject by a former colleague of Justice Scalia on the D.C. Circuit—a book in print for more than 15 years at the time he spoke—had been cited only 9 times by appellate courts. Judge Bea was a charming introducer, and he’d done his homework.
One of the most memorable introductions we ever had was the worst. It was a law-school dean who sat with us beforehand, in the greenroom, but said nary a word. Mostly, Justice Scalia and I traded remarks about what was about to happen before the large audience that awaited. When the time came for us to begin, the aloof academician went out to introduce us. We stayed behind the curtains, as usual: we always liked to be offstage during introductions. The dean went through Justice Scalia’s bio and then began introducing me. “Bryan Garner is the editor in chief of Black’s Law Dictionary, the bane of every law student.” The dean waited for a laugh, but there was only silence.
Backstage, Justice Scalia became incensed. “The bane?! The bane?! Black’s Law Dictionary is the blessing of every law student! What kind of intro is that?”
Some in the audience could hear these offstage remarks. But Justice Scalia was never much concerned about whether something he felt strongly about might embarrass someone else—in this case the dean. He’d have thought the embarrassment deserved.
Another time it was my turn to be embarrassed.
Once when we were introduced at an event in Washington, D.C., we were handed nicely wrapped boxes. As soon as we finished and returned to the greenroom, Justice Scalia wanted to see what the gift was—in this case a dozen Honduran cigars, which delighted him. I stuck my box unopened into my suitcase.
Immediately after the event, I flew back to Dallas, where Karolyne and I were hosting an event for our friend Frank Stevenson, who was running for president of the State Bar of Texas. After introducing him, I announced to the 120 lawyers present: “This morning I gave a speech in Washington with my coauthor”—I didn’t have to mention the name. “As a gift, we each received a dozen Honduran cigars. Anyone who’d like a cigar should join me on the terrace in ten minutes.” When the moment came, eight or so people joined me on the terrace as I unwrapped the box.
But when I opene
d the box, it had only one cigar inside! One. My box was perfectly identical to Justice Scalia’s, but while he’d gotten a dozen, I’d received one. I felt like Rodney Dangerfield. That’s an occupational hazard for a Supreme Court coauthor. My compatriots that evening all thought it was hilarious. But no one laughed more robustly than Justice Scalia himself when he later heard about it. Several times he asked me to repeat the story for others, who always found it amusing as well.
Francis Ford Coppola’s Food and Wine
While preparing for a presentation of Reading Law at the University of San Francisco, the organizer, an alumnus named Joshua Rosen, called my office to inquire whether Karolyne and I thought Justice Scalia might like to have lunch with Francis Ford Coppola. I relayed the query to Justice Scalia, who bellowed: “Of course! The first and second Godfather films are the best ever made.” Soon it was all arranged: on January 30, 2014, we’d be having lunch at Coppola’s San Francisco restaurant, Café Zoetrope.
The two men sat opposite each other at our table of ten, which in a way was fitting because they seemed so different in their views. Early in the conversation, Coppola brought up global warming. Probably eager to “teach against the class,” Justice Scalia expressed doubts.
Maybe thinking he had the trump card, Coppola said, “If we’re not sure about global warming, then what’s the harm in acting to mitigate its effects?”
Justice Scalia responded, “At what cost to the American economy, or to economies around the globe? How many hundreds of billions of dollars are you willing to spend to affect the earth’s temperature by perhaps half a degree over the next century?”
That pretty much ended this thread of the conversation. Justice Scalia appeared warm, jovial, amiable, and relaxed. Coppola seemed to me to be friendly, but reserved and a little standoffish. Perhaps I was misreading him at the outset, but that’s how I saw him.
Things soon changed, though. Rosen stood at the end of the table and asked each of us to introduce ourselves and say something about our background and how it affected our current creative endeavors. I cringed because I was certain that Justice Scalia would react negatively to this request and simply wouldn’t play along. But I couldn’t have been more wrong. After five people went through a brief recitation, Coppola talked about his father’s professional flute-playing with the NBC Orchestra (he and I both had professional flutists48 as fathers), his upbringing in Queens, and the rich artistic environment of New York City. Justice Scalia then reminisced about his own upbringing in Queens as the son of a Romance linguist, and how not only his parents but also his aunts and uncles had closely cultivated his education in every way. He had no cousins, he explained, so he was doted on by a very large family who kept him on the straight and narrow and wanted to ensure that his mind was thoroughly enriched.
I asked the two men whether, in Queens, they’d seen the old Italian parades of the kind depicted in The Godfather, with hundred-dollar bills stuck onto the Virgin Mary: “Absolutely!” said Justice Scalia. “And I’ve never seen a more accurate portrayal than in Francis’s films!”
“Were you aware of Mafia bosses who extorted protection money from local businesses?” I asked.
“I knew absolutely nothing about that,” said Justice Scalia. “I suppose I led a sheltered existence.”
Coppola had thawed by now, and the two men were trading stories of their youth. Only three years separated them, Justice Scalia being the senior. The two had grown up only a few neighborhoods away from each other. Coppola professed that his politics were far to the left. But as with many others I’d seen, Coppola seemed disarmed by just how taken he was with Justice Scalia—a man who, from press accounts, he might have imagined to be a reactionary throwback.
A Third Book Together?
Soon after Reading Law appeared, I proposed to Justice Scalia that we should complete our trilogy with a book about judicial precedent. After all, we’d ended Reading Law with several pages devoted to the doctrine of precedent, and this subject did seem to be the final piece. We talked about it over several meetings. While I was enthusiastic, he was noncommittal—but then again that seemed to be our usual startup routine.
“Send me an outline,” he said, “and I’ll think about it.”
It took me many months to prepare the outline, but finally I did. It had 188 sections—compared to 115 for Making Your Case and 70 for Reading Law. The proposed 188 sections were research-intensive: I knew it would be a hard book to write.
I sent Justice Scalia the proposed outline. Then I called him.
“Nino, did you see the outline I sent?”
“Yes, Bryan, it’s very impressive. Looks like a hell of a lot of work.”
“Well, it will be.”
“I think it’s too hard. No way the two of us can research and write that.”
“That’s a shame. Did you see the publisher’s offer?”
“Lookit, Bryan. You know I don’t do these things for the money. I do them for the bar. I do them for the law. I do them because I enjoy working with you.”
It was a firm no, which of course disappointed me. He said we could continue working together by keeping our other books up to date.
A couple of hours afterward, I had a small brainstorm, and I called him back.
“Nino, what if we tried something different here? What if we brought on a dozen or so state and federal appellate judges and had them draft 30 sections apiece? Then I’ll do my own research and writing, and I’ll edit their material, and then you’ll scrutinize the result of that work so that you’d feel comfortable signing off on it—and you’d rework whatever you want to.”
“You think circuit judges would go for that?”
“Sure they would. To be coauthors with you? Absolutely!”
“Who would you get?”
“Gorsuch of the Tenth Circuit.”
“Oh, he’s excellent.”
“Bea of the Ninth Circuit.”
“Excellent.”
“And of course Alex Kozinski. And your former clerk Jeff Sutton of the Sixth Circuit.”
“That’s 4 of the 12 right there. You think they’d say yes?”
“I do—barring some unforeseen problem.”
“Let me think about it.”
I followed up this conversation with a letter in which I said: “We’ll try to enlist people with clean prose styles compatible with our own. All the coordination will occur on my end, making more work for me and my staff. But it’s work that I find most congenial. If we start with a good first draft, the painful part of book-writing will be minimized.”
Justice Scalia took many months to mull over this fallback proposal. I tried not to rush him.
He called me in April 2014.
“Bryan, since 2008 we’ve talked about your helping me compile and edit my speeches into publishable form. Are you still willing?”
“Of course, Nino! I’m honored. Just have Angela bundle them all together and send them to me.”
“Oh yes. I haven’t gotten around to that.”
“I can’t wait to see them.”
“I think you’re going to like them.”
“I’m sure I will. I’ll dive right into that work, Nino . . . Have you given any more thought to our precedents book? We shouldn’t let that project stall.”
“If you’re helping me on my speeches”—I felt it coming—“I don’t want to do the precedents book.”
“Okay,” I said with resignation.
“The important thing is that we continue working together,” he said. “We have to keep working together.”
“Yes. We do like that, don’t we?”
“It makes us happy.” He liked that simple expression of sentiment, but he usually said me, not us. This was the first time I’d heard him say It makes us happy.
“You won’t mind if I go it alone with the judges on the precedents book, will you? I haven’t asked anyone yet. I was waiting for you.”
“Of course I don’t mind.”
“Will you help me think of the people I should ask?”
“Sure. Gorsuch is on your list, right? Boy, I like him.”
“Yes.”
“And Alex Kozinski.”
“Yes.”
We spent perhaps ten minutes going through my list of possibilities. Sometimes, Justice Scalia would say, “No way! He doesn’t believe in the doctrine of precedent!” Or: “Absolutely! Excellent.” Or: “Are you kidding? Horrible.”
He agreed with me that it should be a list of judges nominated by presidents from both parties—that the only defining characteristics should be a first-rate mind, a good prose style, and an abiding respect for precedent.49
Winners and Losers
In May 2014, Justice Scalia and I tried something new when appearing before the Federal Judges Association in Washington, D.C.: after our normal 90-minute presentation on 25 or so canons of construction, we gave the 200 participants a quiz, with prizes for correct answers. The plan was to pose realistic problems of statutory construction and to ask the participants to give both the correct answer and the correct rationale. Justice Scalia and I both had some trepidation about whether federal circuit and district judges would willingly submit to raising their hands, answering, and being declared, on the spot, either right or wrong. Perhaps Justice Scalia’s worries were greater than mine, because I was the one pressing for this innovation in our lecture plan.
But it ended up working beautifully. I posed the problems on PowerPoint slides so that the audience would both see them and hear them. Justice Scalia and I had worked out all the problems and solutions in advance—many of them in the book itself. When someone would volunteer an answer, Justice Scalia would declare it correct or incorrect (there were several of both types). Somewhat surprisingly, there were many hands in the air for each problem. The first correct answer for each problem won a copy of Making Your Case, and the winning judges were just about as excited as game-show participants. Everybody seemed to have a great deal of fun.
Nino and Me Page 27