The problems we posed give some flavor of what our collaborative presentations were like. You might try your hand at them, though admittedly the correct rationales will be harder for someone who hasn’t just sat through a presentation of the canons of construction providing the rationales. The correct answers follow, but for now, just focus on the questions.
1. A state contract freely permits a company to remove “gravel, sand, earth, or other material” from state-owned land. May the company harvest timber from state-owned land?
2. A state constitution declares that superior-court judges are to be elected by both branches of the legislature. The state legislature enacts a statute allowing the governor to appoint superior-court judges. Is the statute constitutional?
3. A 2008 statute makes it a felony to sell or offer to sell certain controlled substances. A 2011 statute makes the identical act a misdemeanor, which carries a less severe punishment. Is the act both a felony and a misdemeanor, or is it only a misdemeanor? What if the 2008 statute made it a misdemeanor and the 2011 statute a felony?
4. The Hawaii Legislature enacts a statute irrevocably dedicating 25% of all state gasoline excise taxes to a special fund for construction of roads and bridges. A later statute diverts those tax receipts in the future to different purposes. Is the later statute effective?
5. An 1884 constitutional charter for a university states: “Men and women are eligible to become members of fraternities and sororities.” Last year, several women sued to become members of fraternities, and several men to become members of sororities. No precedent exists. How should a trial judge rule on a motion to dismiss, and why?
A judge who goes by the text, of course, would try to give the words their fairest reading, using well-recognized rules of interpretation. A purposivist or consequentialist would ask, in one way or another, how best to solve the problem, giving much less weight to the words—perhaps even in defiance of the words.
Here are the textualist’s answers:
1. No. The company may not harvest timber. The applicable rule is the ejusdem generis canon, which implies the word similar after the word other. This rule is treated in section 32 of Reading Law.
2. No. The statute is unconstitutional. The constitution specifies how superior-court judges are to take office—not including gubernatorial appointment. The governing rule is the negative-implication canon, which is treated in section 10 of Reading Law.
3. Although repeals by implication are disfavored (section 55 of Reading Law), a later statute that flatly contradicts an earlier one prevails. Here, the two provisions, and their concomitant penalties, are utterly inconsistent. Hence the later one prevails. The rule of lenity has no applicability because of the lack of ambiguity.
4. Yes. The earlier statute’s prescription of irrevocability is invalid under the repealability canon: no legislature can bind its successors. This rule is treated in section 45 of Reading Law.
5. Dismiss the lawsuits. They are nonmeritorious under both the fixed-meaning canon (section 7 of Reading Law) and the distributive-phrasing canon (section 33). That is, (1) from 1884 to the present day, no one ever attributed the meaning that these students are now trying to attribute to the charter, and the meaning doesn’t “evolve”; and (2) with the syntax and sense of the problem, the word men goes with fraternities and the word women goes with sororities.
The enthusiasm of our judicial participants dispelled any doubts we had about the value of ending with a participatory quiz. In fact, from that day on, we began our presentations by using the old joke that there would be a quiz at the end, but then insisting that we were entirely earnest in saying so. Every audience, whether judges or lawyers or law students, relished these little exercises.
By the way, our intent here wasn’t to say that textualists invariably arrive at one and the same answer. That may be true most of the time, but admittedly it isn’t true all the time. Our exercises posed straightforward questions that should yield consistent answers—unless, of course, the “interpreter” uses criteria other than textual ones.
The Appellate Judges Education Institute
We used the same technique later in 2014 at an annual summit for judges—this time held in Dallas. The interim dean of the SMU School of Law and a Fifth Circuit judge had come by my office some months earlier to see me about what might be the best approach for writing to invite Justice Scalia. After listening to possible scenarios to approach him, I said, “Why don’t I call him now to see whether he’s willing?” They were surprised but eager. I went back behind my desk to the phone and dialed not Angela’s number, but the private number he’d given me—the one that rang only at his desk.
“Nino. It’s Bryan. How are you?”
“Hello, Bryan! Long time no see.”
“Did you get those reviews I sent you?”
“I did. Thank you. Are you coming up? When can we get together?”
“Not anytime soon. That’s what I’m calling about. I have in my office the SMU law dean and Judge X of the Fifth Circuit.”
“What do they want?”
“They want us to appear together.”
“Good! When?”
“November 15 of this year. It’s in Dallas.”
“What’s the group?”
“It’s the Appellate Judges Education Institute—they go by the initialism AJEI.”
“Good for you not calling that an acronym.”
“Yes. We snoots know it’s an initialism.”
“Right, because the letters are sounded out individually. Is it a good group?”
“Quite reputable. I’ve spoken to them before. It’s state and federal appellate judges. They’ll reimburse you for expenses, of course, and I’ve told them you’ll stay with Karolyne and me.”
“I’d prefer that. We’ll have more time together that way.”
“Yes. And I’ll personally cook your eggs for you.”
“Ha! Excellent. November 15?”
“Right.”
“I’m free. I’m putting it on the calendar. I have something here in D.C. the 14th, so I may not get in until late on the 14th. Maybe quite late. Is that okay?”
“Of course, Nino. I’ll stay up and wait for you. You’re like an uncle to me. I’ve got to be sure you’re comfortable.”
“We’ll do our normal routine on Reading Law?”
“Yes, with our normal deviations—to make it a little more fun.”
“Looking forward to it. Hey, listen! Did I tell you I called Dick Posner?”
“No, why?”
“I hired one of his clerks, and I always give a courtesy call to the circuit judges whose clerks I hire just to let them know—and to have a friendly chat.”
“Was it awkward at all?” I asked.
“No. Just like old times. Dick and I are friends. I like the guy—just not his style of judging!”
“Are you sure it’s wise to hire one of his clerks? Is the clerk a textualist?”
“He’s definitely a textualist—solidly in my camp, not in Posner’s. Believe me, my current clerks vetted him thoroughly.”
“Good. And I’m glad to hear you’ve spoken so warmly with Dick.”
“It was a good feeling.”
Within moments the dean and the judge had their headline event, and they seemed ecstatic.
When November 14 came around, Justice Scalia was to arrive at our house about 9:00 p.m. Karolyne and I would have just finished hosting a wine-tasting and library tour for AJEI participants at our house.
But Justice Scalia didn’t arrive until 1:30 a.m. Exhausted, he went straight to bed and asked me to wake him up at 8 o’clock for breakfast.
As usual, I cooked the eggs, and Karolyne handled everything else. Justice Scalia came downstairs in his full suit, ready for a public appearance.
“How do you like your eggs?”
“I want snotty eggs—over easy,” he said. “I like them snotty.”
“Okay. That’s the first time I’ve ever had that request.
You want two or three?”
“Two will be perfect, Mr. Chef.”
“And I’ll time them well. I haven’t forgotten that you like your eggs well timed.” He was right there with me in the kitchen, standing beside me again as I heated the skillet. “Snotty eggs, huh?”
“That’s what I always call them.”
“It reminds me of a country-music song,” I said.
“Which one?”
“Have you heard it? It’s a love song. ‘If my nose was running money, I’d blow it all on you. But honey, it’s snot.’ ”
“Ha! That’s funny. Where’d you get that?”
“No idea.”
Over breakfast, I mentioned that we needed to sign two boxes’ worth of books in the library before leaving for our presentation at a downtown hotel. The AJEI had sent them over so that board members could receive autographed copies. Of course, we’d also be staying for autographs after our session.
When we walked into the library, Justice Scalia immediately noticed something different.
“What have you done here?”
“I was wondering whether you’d notice.”
“It’s something, but the splendor of this room is so overwhelming I can’t say exactly what it is.”
“It’s the 58 portraits newly hung around the base of the gallery. You see them?”
“Yes, that’s beautiful. Who are they?”
“On the south side are 29 legal and literary figures—Shakespeare, Ben Jonson, Milton, Samuel Johnson, Dickens, Goethe, Galileo, Bentham, Emerson, and so on. I even have Samuel Pufendorf there at the end. But can’t you recognize the portraits on the north side here?”
“Who are they?”
“I know you’ve had cataract surgery. With your new lenses, you should be able to see better despite your age,” I joked.
“You had to mention that, didn’t you?” he said, grinning. “Let’s see, those are Supreme Court Justices.”
“Right. But it’s a select group. These are the 32 pre-1890 Supreme Court Justices whose opinions you and I cite with approval most frequently in Reading Law.”
“You can’t be serious,” he said, gaping up at the portraits.
“It’s true. And notice there are two portraits of John Marshall—and none for Taney.”
“No Roger B. Taney?”
“I blackballed him because of the Dred Scott case,” I said.
“He was a distinguished Justice otherwise,” he said.
“Yes, but you know he played a big role in precipitating the Civil War. Dred Scott is a major blot on his record.”
“Bryan, this is a one-of-a-kind display,” he said warmly.
“Yes, the greatest 19th-century textualists.”
“How did you get them?”
“Karolyne bought the portraits for me—a whole set of engravings done by Max and Albert Rosenthal of Philadelphia—father and son artists. During 1889–1890, they did etchings of all the Justices up to that time.”
“Amazing. I don’t think I’ve ever seen them,” he said.
“I framed only about a third of them—only the ones you and I cite favorably.”
“My goodness.”
“The whole art installation was completed just this week, in time for last night’s wine-tasting and library tour.”
“You really do like Reading Law, don’t you?”
“It’s my favorite of the books I’ve worked on,” I said.
“You can’t be serious. Black’s Law Dictionary? Your usage book, which is really your magnum opus?”
“Yes, but Reading Law is even more fun. I get to work with you.”
“Well.” He hesitated and cleared his throat. “Thank you. Let’s get these books signed, and then we have a show to put on.”
It was a big event in downtown Dallas, and the line for autographs was long. Afterward, he came back to the house for a couple of hours before flying to Boston. He wanted to read briefs among the Reading Law Justices in my library.
“I’m getting ready for a moot-court competition tomorrow at Harvard.”
“Can I help you?” I asked.
“How could you possibly help me?” he asked.
“I can show you how to tell instantly whether they’ve followed our advice in Making Your Case.”
“How can you possibly do that?”
“First, you look at the questions presented. If they’re one-sentence whether-questions, they’re probably incomprehensible. If they’re set out briefly in separate sentences, as we recommend, the whole brief is likely to be pretty good.”
“Seriously?”
“Yes. Second, you look at the table of contents. All you have to do is glance at the point headings to see whether, when the argument section begins, they’re typeset in down-style, not initial caps or all-caps—and whether they’re comprehensibly phrased. And see whether the page is attractive.”
“We do say that in Making Your Case, don’t we?” he asked me.
“Of course we do!” I answered. “Third, you glance at the conclusion. See whether it says, ‘For the foregoing reasons,’ or whether it gives a short, fresh summation.”
“I can see what you’re driving at,” he said, nodding.
“Yes. Now, let’s look at these two briefs you’re reading. Aha! The petitioners have issue statements in sentence fragments beginning with Whether—they’re incomprehensible. The respondents have reasonable-looking issues in a few succinct sentences. They’re instantly readable. The petitioners have an awful table of contents. Look at that! It looks like a ransom note!”
“Ha! You’re right.”
“The respondents have a good table of contents,” I said. “Now let’s look at the conclusions. Ah. Just as I suspected. Both sides have perfunctory closers. That’s the way it’s taught at Harvard—almost as a dogma.”
“How do you know that?”
“That’s been the case for years. I’ve seen their moot-court materials.”
“I should encourage them to change that. This is amazing. We’ve literally spent no more than two minutes with these briefs, and I can already tell that the respondents are the better writers.”
The Original Originalist
After that visit, I kept up my usual travel schedule, visiting D.C. six times over the next four months. I saw Justice Scalia on all but one of those trips. When we’d have in-chambers time together, we’d eke out a difficult paragraph or two—almost always on Reading Law, as opposed to Making Your Case.
One afternoon in April, I asked him what he thought of the new stage play depicting him. It was called The Originalist, and both the lead actor (Ed Gero) and the play itself had received lots of national attention—mostly, it’s fair to say, acclaim.
“It’s really good,” Justice Scalia said. “You ought to go see it. The actor who plays me, Ed Gero, has all my mannerisms down—the gestures, the walk, everything. His ancestors come from the same part of Italy as mine.”
“Amazing. You’ve seen the performance?”
“No, but I’ve met the guy, and I really like him. I’ve had some clerks go, and one of my sons went.”
“Is it a sympathetic portrayal?”
“Let’s put it this way. Anyone who goes into the theater, whether they like me or hate me to begin with, leaves thinking better of me. That’s all that matters to me. That’s about as fair as you can get.”
“That’s good.”
“You want to go?” he asked.
“Lyne and I could go tonight, but we’re leaving tomorrow.”
“Let me call and see whether I can get tickets. It’s been sold out, you know.”
He went over to his desk, picked up the phone, and said, “I think I’ve got his number here.” Within seconds, he had Gero on the line: “Ed, it’s Nino. My coauthor, Bryan Garner, is in town, and he and his wife would like to come see the play tonight. Can you help them get tickets? Excellent. They’ll pay full freight, but get them the best tickets you can . . . Right. They’ll pick them up at the b
ox office. What’s that? . . . Bryan, can you stay and meet him in his dressing room afterward?”
“Sure,” I said.
“He can do that. Yes. Thanks, Ed.”
It was an excellent performance. I could see why the play was so popular. Gero had indeed mastered many Scalian mannerisms: the protruding lower lip, the folded arms with hands grasping elbows, the determined walk with palms facing backward, the eyebrows going very high and very low. Afterward, Karolyne and I talked with Gero in his dressing room as he was taking off his makeup. He had pictures of Justice Scalia with all kinds of expressions posted around the dressing room; I took him to be a method actor.
Gero was affable and charming, and we exchanged contact information. He told me that in a few weeks, he’d be going skeet-shooting with Justice Scalia and his law clerks. I told him he’d love it.
When I called Justice Scalia the next day from Dallas, I told him how much Karolyne and I liked the play—and that I agreed with the assessment he’d been given. But I had two other reasons for calling. First, I wanted to schedule another work session on June 3. I had that full day free in D.C. He said he couldn’t do it because he’d be taking his clerks skeet-shooting.
“With Ed Gero?” I asked.
“Yeah. It’s going to be fun. Say, why don’t you come along? The clerks would like that.”
“Sure. I can make it.”
The second reason for the call was that a Dallas Morning News reporter who was writing a profile of me wanted a comment from him.
“She wants to know why you like working with me.”
“Why I like working with you?”
“Assuming you do. If you’re willing. I know you’re really busy, and I hesitated even to mention it.”
“No, I’d like to make a statement about that. Can I just put it in an e-mail?”
“Sure.”
“I’ll have it to you shortly. Let me write it out now. You can forward it to her.”
“That’s very kind of you, Nino.”
“Glad to do it. See you soon. Goodbye.”
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