In about 30 minutes, his comment popped up in my mailbox.
Why do I enjoy working with Bryan Garner?
Several reasons: Perhaps most important of all, we agree on what is the object of textual interpretation. And I do mean entirely. He is the original Originalist.
Secondly, he makes me work hard. He is a tireless worker. I cannot imagine how he manages to write and edit all the books he does—and all of them first-rate.
And third, he is good company. Not only knowledgeable, but interesting and witty. Not what one expects of a philologist.
I sent this response on to the reporter, who then wanted me to interpret the first part of his answer, about being the “original Originalist,” for a newspaper audience. My decoding: “Like me, Bryan is committed to the idea that judges should interpret and apply statutes and contracts as written—and as understood at the time they were written. Judges shouldn’t imbue legal documents with their own visions of wise policy or economically efficient outcomes. To interpret isn’t to distort or contort the words.”50
Rainy Days
On June 2, the day before the scheduled skeet shoot, I taught a half-day writing seminar for a government agency and met Justice Scalia for lunch at the 701 Restaurant on Pennsylvania Avenue. Sitting at a secluded table when I arrived, he seemed downcast as I walked up to shake his hand.
“Hi, Bryan.” He sounded gloomy.
“Hello, Nino. Everything okay?”
“I’ve already ordered you a glass of white wine. I hope you don’t mind.”
“Not at all.”
“Listen, I’ve had to cancel the skeet shoot tomorrow,” he said. “We’ll be rained out.”
“That’s a shame,” I said.
“Yeah, we’ll have to reschedule for this year’s clerks.”
“Too bad. I guess I’ll just miss out. I was looking forward to it.”
“You’re going to be in town tomorrow?” he asked.
“I have all day free,” I said, “and then I teach again on Thursday.”
“Why don’t you spend the day with me in chambers? Do you have something for us to work on?”
“Sure. I’ve identified about five little problems I’d like to write something about in Reading Law. They need your close attention. And then I’d like us to look through Making Your Case.”
“Yeah. We never go back to that book.”
“Every time we do, we like what we see,” I said, raising the glass of wine that had silently appeared before me.
“Right,” he said, raising his, and then sipping.
“There’s only one section that desperately needs your amplification,” I said.
“What’s that?”
“How to handle hypothetical questions at oral argument. I’ve heard you say so much about it in speeches and conversation, yet in the book we devote only a measly half-page to it.”
“Is that all we have? We should expand it. I agree.”
We ordered lunch. He was more reticent than usual, his damp and pendulous lower lip protruding more than usual. He seemed dejected.
“Bryan, I want your advice about something.”
“Sure.”
“You know I can’t talk about cases, and I never would.”
“I know.”
“I’m thinking about criticizing a colleague’s writing style. You’re something of an expert on judicial opinions. Do you think that sort of commentary is permissible?”
“Nino, for a stylist like you, it’s almost irresistible,” I said, “as it would be for me. That’s especially so if the bad writing you’re criticizing reflects bad thinking. You’re a snoot. So the temptation is great.”
“I’m thinking about saying I’d be mortified to join in such a badly written opinion.”
“What?”
“I’m thinking about saying I’d rather put my head in a bag than join in such a badly written opinion.”
“In those very words?” I asked.
“Yeah,” he said.
“Ooh. That stings. Let me say this, Nino. I’ve never purported to advise you on things. You’ve been on the Court for 28 years. In your later years on the Court, you don’t want to sound bitter. If you sound like a bitter old man, people will discount what you say. You must be magnanimous.”
“I suppose you’re right.”
“I’m sure you think about your legacy sometimes. Direct insults can’t be good—even if you’re right on the merits. You should find a way to sound magnanimous.”
“I’ll think about it,” he said.
Naturally, I was curious about what the opinion might be. Two weeks later, when I was back in my office in Dallas, Justice Scalia called with some other news about legal style: “Bryan, listen, I wanted you to hear it first from me. I’m going to be issuing an opinion with all citations in footnotes—your technique. It really does work well.”
“Wonderful!” I said.
“I’m not adopting the technique across the board. In fact, it’s just for this one opinion.”
“Why are you doing it?”
“Because it’ll be printed in newspapers, and I want people to read the damned thing. Citations would just get in the way. So I’m adopting your system in this one case. I thought you’d be pleased.”
“I really am, Nino. It’s a start toward getting you to see how much better it’d be if you did it in all your opinions.”
“I’m not there yet.”
“I know. But thanks for letting me know.”
As it happened, these stylistic points all related to the same dissenting opinion, in the same-sex marriage case known as Obergefell. He ended up putting all his citations in footnotes. In the end, too, he couldn’t resist the head-in-a-bag comment, although he relegated it to a (textual) footnote:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.51
This made me think of the great laughter that Justice Scalia and I had enjoyed just four months earlier, when we opened fortune cookies after having Chinese takeout food for lunch in his chambers. His fortune had said, “Your coworkers take pleasure in your great sense of creativity.” Somehow, I imagined that a majority of his coworkers didn’t take great pleasure in this rhetorical rebuff.
The Meade Griffin Citation
The day after our lunch at 701 Restaurant, when he’d asked for my thoughts about the head-in-the-bag comment, we were working together in his chambers on Reading Law. I suggested that we begin by reviewing all our additions to the book since the first edition was published in 2012. Then we would set to work on the heavy lifting, tackling some new legal puzzles I’d brought with me that day. He stopped pretty early in the preface.
“Bryan, you’re including some unnecessary citations!”
“I don’t know what you mean, Nino. It’s all pertinent, and it adds scholarly depth.”
“For example, you’ve added this Texas Supreme Court case to the preface. Cut it! We don’t need a state supreme court.”
“Nino, that’s my grandfather—my mother’s father. Notice that the citation says ‘Griffin, J.’ at the end. My grandfather, Meade Felix Griffin, was on the Texas Supreme Court for 20 years.” Justice Scalia was listening intently. I continued: “A couple of months ago, I decided to see whether my grandfather ever said anything about statutory construction. He was a conservative judge. He believed in stare decisis. It’s not a perfect sentence that he wrote, but it’s pretty good in saying that the court shouldn’t rewrite statutes: ‘It is not the duty of the court to write the laws of our state, but the proper function of the courts is to enforce the laws as made by the Legislature.�
�52 Please, Nino, let me cite my grandfather.”
“Well, I see now. If my grandfather had written anything on statutory construction, I’d damn well want to cite it. Of course we’ll keep it.”
“Thank you for understanding, Nino.”
“You’ve done well. Judge Griffin must stay.” We smiled at each other.
Doppelgänger
That evening, I had planned dinner with Ed Gero, the actor in The Originalist, at the Cosmos Club—just the two of us. In the middle of the afternoon, as Justice Scalia and I were writing some tricky paragraphs, I asked him whether he’d like to join us. Yes, he said. So at 6:00 p.m. the marshals took us to the Club—a place where Justice Scalia had lived for six months during the Nixon administration—and we met up with Ed for a lively evening of conversation about theater and the law. The high point came when two elderly couples were leaving. Justice Scalia was facing them, and Ed’s back was to them as they walked by. Upon seeing Justice Scalia, one of the women stopped and said, “Forgive me for interrupting, but I want you to know how much I enjoyed your show. You were really good!”
Laughing, I said: “This is Justice Scalia himself. And here’s the actor over here—Ed Gero.”
The three of us laughed over that, and so did the woman, who lingered for a moment after I told her that Justice Scalia hadn’t seen the play. She reassured him that it was a most endearing representation of him.
A Hack Job
I didn’t see a great deal of Justice Scalia during the summer and early fall of 2015. In July, he sent me his Daily Missal for repair: it’s an early-20th-century book full of Latin prayers he’d say each day. That explained to me, for the first time, why he was so conversant with Latin, particularly spoken Latin: he was reading it—and probably reading it aloud—every single day. His leatherbound missal had become frayed, and the leather had separated from the boards. Knowing that I had various book presses and book-repair materials, as well as friends in the book-repair business who could help if necessary, he sent me the book. This was an easy job I could do on my own, requiring only some special book glue and some time in a book press, together with some careful trimming with fine scissors. I soon returned it to him as good as new.
On August 25, he wrote to me: “Bryan: Many thanks for the wonderfully restored Missal. I will try to make it last for the time left. We don’t have a gig together until November. I hope we will see each other before then. I miss you guys. Regards to Lyne. Nino.”
After we arranged two dinners in D.C. in early October, on the 4th and the 6th, a funny thing happened. He received a bizarre e-mail message from me, with the subject line “Trip.” It was strangely written and mispunctuated (replete with typos and a comma splice):
I really hope you get this fast as I could not inform everyone about my trip to Philippines for a conference. I had my phone and other items stolen from me here on my way back to my Hotel room, I’ve tried to sort thing out with the necessary authorities but my return flight will be be [sic] leaving soon. I need an urgent assistance from you. Let me know if you can be of any help.
Bryan
Shortly after receiving this, Justice Scalia responded, asking whether I’d sent it. “Sounds like a scam,” he said.
That day, I was teaching in South Carolina, and I didn’t receive his e-mail message for several hours. He followed up with a phone call to LawProse, telling Karolyne he was concerned that he hadn’t heard back from me. It was the first she had heard about my Philippine escapade. Justice Scalia said he’d happily do anything he could for me, including wiring money. He mentioned that the message seemed very unlike me, even if I were sending it from a jail cell in Manila: he couldn’t imagine my committing such grammatical blunders even if I were in extremis. Karolyne assured him that my e-mail account must have been hacked, and that my biggest worry that day was extricating myself from the Charleston floods. She told me later that day that he’d sounded seriously concerned, and she could hear the sigh of relief when he found out I was all right.
Scalia on Law, Civics, and Religion
Not long after this, Justice Scalia finally sent me all his speeches to collect and edit—nearly 200 of them. I soon set to work sorting them into three broad categories: law, civics, and religion. They were stunningly good, and I thought they’d make an excellent three-volume boxed set. Perhaps we’d come out with one volume per year, selling them individually, until we had the full set for bundling. In my judgment they surpassed in quality any collection of speeches I’d seen published before. But some didn’t have titles, and they needed at least a little bit of his attention. We talked several times about my plan, and he agreed in principle with my categories and with the idea that the volume on religion should come last—probably posthumously. Although I told him that I’d do the editorial work as his friend, he insisted that I should receive part of the royalties.
“It’s a lot of work!” he said.
“We’ll see,” I responded. “Just help me with titles and see whether you like the order I’ve put them in.”
“You like the speeches?”
“They’re brilliant, Nino. I’ve never seen anything like this collection of speeches. And I have probably 500 volumes of collected speeches.”
“Okay, I’ll get on it this summer. They are good, aren’t they? Heh, heh. I do work hard on the speeches I give.”
* * *
41. Turner v. United States, 396 U.S. 398, 426 (1970) (Black J. dissenting).
42. Erin Fuchs, “Scalia’s Close Friend Tells Us Why the Justice Is Such a ‘Famous Curmudgeon,’ ” 24 Dec. 2012, http://www.businessinsider.com/bryan-garner-talks-about-scalia-2012-12.
43. Id.
44Id.
45. Id.
46Id.
47. 376 U.S. 254 (1964).
48. Some might ask whether that shouldn’t be flautist. In fact, flutist is the much older word in English (dating from the 17th century), and it predominates in both American print sources and World English print sources by a 2-to-1 margin. See Garner’s Modern English Usage 397 (4th ed. 2016). Justice Scalia raised this point of usage over lunch, correctly supposing that flutist was the preferred form before I pronounced on the subject.
49In the end, my coauthors were Justice Neil M. Gorsuch (Justice Scalia’s successor), Judge Carlos Bea of the Ninth Circuit, Chief Justice Rebecca White Berch of the Supreme Court of Arizona (retired), Judge Harris L Hartz of the Tenth Circuit, Chief Justice Nathan L. Hecht of the Supreme Court of Texas, Judge Brett M. Kavanaugh of the D.C. Circuit, Judge Alex Kozinski of the Ninth Circuit (formerly chief judge), Judge Sandra L. Lynch of the First Circuit (formerly chief judge), Judge William H. Pryor Jr. of the Eleventh Circuit, Senior Judge Thomas M. Reavley of the Fifth Circuit, Judge Jeffrey S. Sutton of the Sixth Circuit, and Chief Judge Diane P. Wood of the Seventh Circuit. See Bryan A. Garner et al., The Law of Judicial Precedent (2016).
50. Cheryl Hall, “Expert Makes a Case to Clarify Fine Print,” Dallas Morning News, 26 Apr. 2015, 1D, at 12D.
51. Obergefell v. Hodges, 135 S.Ct. 2584, 2630 n.22 (2015).
52. Central Educ. Agency v. Independent Sch. Dist. of City of El Paso, 254 S.W.2d 357, 361 (Tex. 1953) (per Griffin J.).
9
Preparing for Asia
(2015–2016)
Karolyne and I had traveled to Hong Kong in 2010, 2012, and 2014. Just as Justice Scalia liked to regale us with brief accounts of his international travels, to Galway or Innsbruck or Florence, we’d tell him about ours—especially the ones to Hong Kong, involving Karolyne’s many aunts and uncles there, the superb cuisine, the excellent shopping, and the tailor-made clothing.
Beginning about 2013, he told us that he wanted to travel with us to Hong Kong. At first I suppose we thought of this as idle talk or remote reverie, but soon it became a recurrent topic of conversation. Finally he said, “I really want to go to Hong Kong with you. We could do a speaking tour.” As in that very statement, the speaking engagements were an afterthought—a kind of exc
use to make the trip.
I said I’d try to line up something through our publisher, Thomson Reuters. Unfortunately, my first phone call with their head of legal marketing in Asia—carefully arranged through American channels—proved futile. He was German, and he seemed completely uninformed about American law and the U.S. Supreme Court—and perhaps a little anti-American. “You have an American judge who wants to speak in Asia? There are lots of American judges, I’m sure, but what makes you think an Asian audience would have any interest?”
I answered: “He’s not just an American judge. He’s probably the most famous judge in the world. People turn out everywhere to hear him.” Although I may have sounded hyperbolic, I also felt certain I was speaking truth.
“I can’t imagine moving forward on this,” he replied. “It wouldn’t be profitable for the company, and American law is very different from Chinese law. Totally different system. But thank you for your interest.”
The call was so perplexing and dumbfounding that I never told Justice Scalia about it. Our American contacts at Thomson Reuters suggested that we make a joint appearance in London. That would be easy to arrange. I called Justice Scalia to suggest it.
“I don’t want to go to London,” he said. “I can always go to London. I want to go to Hong Kong with you and Lyne. I want to meet her family there and see how it’s changed in the quarter century since I was last there. I want to get tailor-made suits there.”
“Okay, Nino,” I said, “I’m working on it.”
As luck would have it, in the fall of 2014 Justice Scalia received an invitation from Simon Chesterman, dean of the law school at the National University of Singapore. He wanted Justice Scalia to speak in late 2015 or 2016. When Justice Scalia showed me the letter in chambers one day, he suggested that we coordinate the trip with our long-desired week in Hong Kong. Although the invitation was for Justice Scalia alone, he said he’d like to see whether we could arrange a joint presentation for the two of us in Singapore. And soon he had done so: the Supreme Court of Singapore, at the suggestion of Dean Chesterman, invited the two of us to speak about Making Your Case in the Court’s huge auditorium.
Nino and Me Page 29