Nino and Me

by Bryan A. Garner

  Lunch at the Court

  The excursion to the Supreme Court of Singapore was fascinating. First we met in chambers with Chief Justice Menon. From his office we could see much of Singapore. The Chief Justice enjoyed explaining the highlights of the skyline, including the beautiful Marina Bay Sands Hotel, which is designed to look like a boat atop three office towers. Chief Justice Menon told us that we should go to the restaurant at the top if at all possible. That was the one request that Justice Scalia would later make of Dean Chesterman.

  Then we went to a grand conference room for lunch with all the appellate judges. Once a week, the full court lunches together, and two of the judges are designated hosts. We had traditional Singaporean food: soup, curried chicken, mushrooms, bok choy, tofu, and fresh fruit. After dessert, Justice Scalia and I each said some words of thanks to those assembled around the huge conference table. Tom gave out a dozen or so copies of Reading Law as gifts—the books that had delayed our departure—and Justice Scalia and I inscribed one for each judge.

  At 2 o’clock, in a packed conference room, Justice Scalia addressed all the law clerks of the Singapore courts. To Justice Scalia, Karolyne, Tom, and me, it seemed highly considerate of the Singapore judges to want their clerks to have a session of their own with Justice Scalia. He began his talk by stressing how important clerkships are both for the judges and for the legal system as a whole. He explained how clerkships in the U.S. circuit courts, such as the D.C. Circuit where he once sat, differ from those at the Supreme Court. In the latter, clerks must spend a great deal of time deciding which cases to hear. That’s not true in the circuit courts, which don’t enjoy discretionary review. He remarked that former law clerks in any American court are held in high regard throughout the legal system, drawing a laugh with his reference to his own “clerkarati” (his own neologism, a portmanteau of clerk and literati).

  He asked me to comment on my own experience clerking for Judge Thomas M. Reavley, and I did so briefly. No small degree of wonderment came across the room when Justice Scalia noted that upon departing from their one-year stints at the Supreme Court, most clerks immediately get paid more than the Justices themselves.

  Reading Law Presentation

  Afterward, we went back to the Shangri-La for a two-hour break. Justice Scalia wanted to review each point we’d be covering later that day in our Reading Law talk at the Singapore Supreme Court. It was to be a 40-minute talk, followed by a 15-minute Q&A session. Working together in his room, we agreed that we’d give our five-question test at the end (see pp. 224–25). We’d therefore have to be sure to cover those points in our main lecture. We further marked up the “cheat sheets” we habitually used, with diagonals from G to S and back to show how we’d divvy up the material. Mostly he was nervous about precisely how we’d deal with the introductory materials in the book, but by this point in our experience I was always happy to simply wing it: together, we’d cover everything essential, and it always worked best when it was spontaneous. When I reminded him of that, he felt comfortable and ready to go.

  Before leaving, I brought up a touchy subject. “Nino, there were a couple of points of usage that came up in your remarks this morning.”

  “Really? Did I say something wrong?”

  “Would you want me to tell you if you did?”

  “Of course!”

  “You were in great form, of course, so I feel churlish isolating a mistake in usage.”

  “Out with it! Give it to me!”

  “In reference to the death penalty, you said something about prisoners who were hung. It really should be hanged.”

  “Really? With executions, prisoners are hanged?”

  “Strictly speaking, yes. Coats are hung; prisoners are hanged.”

  “By golly, I didn’t know that. I’m glad to know that.”

  “In My Fair Lady, even Henry Higgins got it wrong.”

  “Really?”

  “Yes. He said something about people who should be ‘hung for the cold-blooded murder of the English tongue.’ Totally out of character, Lerner and Loewe were going for the rhyme of hung-tongue.”

  “Okay. What’s the other one?”

  “Contra proferentem.” That’s the Latin name for the doctrine that a contract, especially a consumer contract, will be construed most strictly against the party that prepared or drafted it. The doctrine is invoked all the time against insurance companies.

  “Contra proferentem. What’s the problem?” he asked.

  “You just said it properly. But this morning you said preferentem.”

  “Preferentem? I did not.”

  “Well, I’m sure you did.”

  “It’s /proh/! Proferentem!”

  “Right. I just thought I’d mention it before the other one becomes habitual.”

  “That’s good. Thank you for that. Prisoners used to be hanged. Contra proferentem. I’ll remember those.”

  “It’s always awkward correcting someone.”

  “C’mon! Not between us! I appreciate that. I need you for that.”

  Soon we were at the Supreme Court of Singapore being introduced by Justice Andrew Phang of the Court of Appeal, who was generous in his remarks. Our presentation went well, and the quiz questions were impressively answered. A correct answer to any of our five questions won the participant a signed copy of Reading Law. After the presentation, many attendees lingered to speak with us. Soon Dean Chesterman was herding us toward our transportation to Forlino, the Italian restaurant in which he’d arranged a private room with a huge round table for 11—the 4 of us (Tom Leighton now being a regular part of our quartet), 1 judge, 3 professors, and 3 local lawyers.

  Afterward, Dean Chesterman took a small group of us to Spago, a rooftop bar at the Marina Bay Sands. When we got there, Justice Scalia called his chambers. Then he told me he must excuse himself. He needed privacy.

  He was gone for 30 minutes or so, in a secluded room I helped him find in the rooftop lounge. When I saw him emerge from the door, I went over to get him. He looked somber, his lower lip protruding. “It was a death case from Texas,” he said.

  “A last-minute motion for stay of execution?” I asked.

  “Yes. The man will be executed later today. My law clerk has been scouring the record to help me decide whether there is any merit to the motion. We discussed it at some length. Unfortunately, it has no merit.”

  “Persuading you was his last hope, I suppose,” I said. As the Justice assigned to the Fifth Circuit, he was the one to hear emergency motions from Texas, Louisiana, and Mississippi. If he didn’t see a reason for review by the full Supreme Court, that essentially put an end to the matter—and the execution would go forward. The full Court would see his memo, and all the Justices would vote on the order denying review, but considerable deference is normally given to the Circuit Justice’s view.

  “This is the gravest function I have as a judge,” he said, sighing.

  When he rejoined the party, he smiled and chuckled less than usual, and he spoke in low tones, as if something had caught in his throat. He seemed to have been deeply affected by the decision he’d just made. It was no different from reviews done by many judges before him, both state and federal. But his decision was essentially the last stop. Only Karolyne and I knew the cause of his reserve. He remained taciturn and somewhat distracted until we said goodnight.

  National University of Singapore

  The next morning Justice Scalia had a private meeting with the president of the National University of Singapore and other university officials. Tom and I joined him for lunch with the law faculty, while Karolyne ducked out for a quick shopping excursion. She came back with a traditional Singaporean blouse for Mrs. Scalia.

  In the afternoon, Justice Scalia was to give his keynote address, entitled “Judicial Interpretation of Legal Texts.” For this purpose, he decided to adapt one of his favorite speeches, called “Mullahs of the West: Judges as Moral Arbiters.” Beforehand, he had about 30 minutes to review his speech,
which he’d given many times but which needed tailoring, he thought, to the Singaporean audience. Karolyne, Dean Chesterman, and I were with him in a large, multiwindowed conference room as the students amassed in the auditorium. Justice Scalia showed what I took to be mock-irritability as the time approached. “Leave me alone to study my speech!” he demanded with a smile.

  The three of us retreated to a nearby sitting area where Justice Scalia was still in view. We watched as he whispered parts of the speech and gesticulated with muted animation.

  The point of the speech was that during the first half of the 20th century, a headless fourth branch of American government had been created—namely, the alphabet soup of federal agencies (EPA, FDA, FTC, etc.) supposedly to be run by “experts,” who could be expected to be mostly apolitical. He called the experiment a “grand failure,” observing that most questions to be decided by the agency experts have no right or wrong answers, but merely social preferences. He also noted that policy questions cannot be divorced from politics: because Congress controls the agency purse strings, the so-called “executive” agencies are subservient to Congress, and agency heads are no longer removable by the elected president.

  In a surprising twist, Justice Scalia said that he believed in natural law—meaning a universal moral law derived from a sense of human nature or divine justice. (I would have thought he didn’t.) He said he was sure that it exists, yet he said that his own sense of it would be different from that of others. So the only way to implement natural law, for moral questions such as abortion and the death penalty, is to let the people’s sense of natural law be determinative—as expressed through their elected representatives. He cited example after example of courts as maverick moralizers. Then he tied this theme to textualism and originalism: “Why have judges not always been such pioneering policy-makers? The answer is that until relatively recently, the meaning of laws, including fundamental laws or constitutions, was thought to be static.” He noted that in 1920, when there had come to be a general agreement that women ought to be able to vote, the Supreme Court didn’t declare that the Equal Protection Clause had “acquired new meaning” that it hadn’t borne before, but instead the people adopted the 19th Amendment, requiring every state to give women the franchise.

  He tied this point back to the agency experts, saying that judges are no more qualified to give people answers to moral questions than the technical experts are. And he noted that if judges engage in freewheeling social regulation by departing from original meaning, the appointment-and-confirmation process for judges will be more political than ever. He ended by saying, “I’m not happy about the intrusion of politics into the judicial-appointment process in my country, but frankly I prefer it to the alternative, which is government by judicial aristocracy.”

  It was an excellent speech, with powerful points, but he looked withdrawn onstage: he read the whole thing at a lectern that was 25 feet back from the front of the stage, and the lighting for that part of the stage was poor. Laughter was relatively infrequent and muted, and the applause at the end was only polite, not enthusiastic.

  The 45-minute speech was followed by a 45-minute onstage interview by Dean Chesterman—and then questions from the audience. One of those questions was especially pointed: “What do you think if your comments in dissents, such as those in Obergefell, suggest that the Court is engaged in illegitimate exercises of power, and therefore the Court’s stature is lowered in people’s eyes?”

  Justice Scalia’s answer stunned me, and I’d never heard him say anything like this before: “Maybe the Court’s stature should be lower in people’s eyes, if a majority of my colleagues are going to behave that way.”

  Some Wrinkles in the Return to Hong Kong

  Although Justice Scalia and I had only three speaking engagements during our six days in Hong Kong—at the Chinese University of Hong Kong, the University of Hong Kong, and Thomson Reuters—our schedule was pretty well filled. It included a reception at the American Consulate, sightseeing most mornings, dinner with Chief Justice Geoffrey Ma of the Court of Final Appeal, a tour of the courthouse, two shopping excursions, two tailoring appointments, and two family dinners. Yet we had paced things reasonably well.

  Although Justice Scalia seemed to experience a relatively stress-free trip, Karolyne and I found it perhaps the most stressful one we’d ever taken. We were his “handlers”—the only ones he had except at airports—and we remained at his beck and call to ensure that he had what he needed and was happy at all times. Karolyne took on the role of general concierge and “Supreme Scheduler” (as Justice Scalia dubbed her). I took on the roles of footman, bodyguard, and occasional jester—or straight man, as the situation might require. Tom played the crucial roles of Zen master, amiable companion, logistical factotum, and frequent adjunct jester.

  The departure from Singapore was auspicious. Before leaving, Karolyne had assured Justice Scalia that she’d steam his suits upon our arrival in Hong Kong—so he needn’t worry about wrinkles. We had plenty of time, after all. Hence she folded his suits again and packed them in her suitcase. Before we left for the airport, she asked us to exchange the Singaporean pocket money she’d given us for our Hong Kong pocket money.

  “My goodness,” said Justice Scalia. “You’re so well organized. Is she always like this?”

  “Yes, she is,” I said. Karolyne just smiled.

  Nick, our State Department aide in Singapore, saw us off. Justice Scalia enjoyed his briefings and offered him a visit to the Court and a box seat for oral arguments when he returned to the United States.

  After the pilot said we’d be delayed, Justice Scalia caught my eye and beckoned me. I went up the aisle to see him.

  “My iPod isn’t working.” He handed it to me.

  “It’s out of juice,” I said. “Use your other one—the one that Lyne and I gave you. I’ll charge this one on the flight.”

  “Okay. I guess it’s in my briefcase.”

  Of course, he couldn’t get it out of the overhead bin because of his bad shoulder. I took it down, opened it, and there the iPod was, tucked neatly into a leather pouch.

  “Here it is, Nino.”

  We were talking over a woman in the aisle seat next to him, but she had headphones on and seemed happily unaware of us.

  “You want Mozart?”

  “Mozart’s good.”

  “Okay, there are more than 200 pieces by Mozart on here. I’ll set it on shuffle songs, and you’ll hear a great variety of pieces by Mozart.”

  “What do you mean?”

  “Just try this. You’ll love it. You won’t have 20 harpsichord pieces in a row. It’ll be varied. Just put your headphones on now and lose yourself in the Mozart. We’ll be in Hong Kong before you know it.”

  “Thanks, Bryan.”

  He closed his eyes, and I went back to my aisle seat two rows back. Our flight was delayed for well over an hour.

  The bigger delay, though, was in receiving our luggage in Hong Kong. Once again we were taken to the Chinese-government VIP lounge, where Alissa Redmond from the State Department looked after us. A friendly, mild-mannered midwesterner in her early 30s, she had had several years of experience with the State Department in Africa and Hong Kong. Because the bags were delayed, we spent an inordinate amount of time in the VIP lounge, while she waited just outside.

  Alissa explained to us that Clifford Hart, the consul general, would be greeting us with a reception at his official residence—the former embassy—soon after we checked in at the hotel. When the British handed over Hong Kong to the Chinese government in 1997, the embassy was downgraded to a consulate and the ambassador became a consul general.

  “My suits are going to be wrinkled, and there’ll be no time for Lyne to steam them,” Justice Scalia said. “Wouldn’t you know this would happen!”

  Justice Scalia fretted about this all the way to the hotel. By this time we were already an hour late to the consul general’s reception, with 80 or so guests waiting, when we arri
ved at the Ritz-Carlton. The hotel was festooned with Chinese New Year decorations, and the drive-up was impressive. Technically in Kowloon, not central Hong Kong, the Ritz-Carlton is housed atop the International Commerce Center (ICC), which is the tallest building in the metropolis. Check-in is on the 103rd floor—which we were told was a world altitudinal record for hotel lobbies.

  As soon as we arrived at the reception desk, Karolyne helped Justice Scalia check in as I checked in to our room. Karolyne had made the reservation under a slight alias, “Gregory Scalia” (using his middle name), so as to attract less attention among hotel staff. She and I took a room on 116, one floor above Justice Scalia’s and Tom Leighton’s rooms.

  We accompanied Justice Scalia to his room, where, upon entering, he gave me a key to his room in case I might need it for any reason. We opened Karolyne’s suitcase to get his suits out, and he was exceedingly upset when he saw how wrinkled they were. “What am I going to wear?”

  “Nino, wear these dress slacks with the blazer you have on, and put on a tie,” I said. “There’s no time for steaming now.”

  “Dammit! This is exactly what I was trying to prevent by originally carrying my suits on board instead of checking them!”

  “I know. We didn’t expect the delay. You’ll look great in the blazer.”

  “I will not, dammit!”

  “How long before we meet you in the lobby, Nino? Fifteen minutes? Say 3:30?”

  “I’ll be there in 15,” he grumbled.

  When the 15 minutes had passed, Karolyne, Tom, and I had already been waiting in the lobby for 5. He didn’t come at 3:30. At 3:40, I called his room. The consul general and his invitees had now been waiting 90 minutes for us.

  “Nino, we’re waiting in the lobby.”

  “I’m waiting here in my room.”

  “Waiting for what?”