“Good morning.”
“Come in while I finish dressing. Sorry to hold you up. I guess I overslept.”
“I just wanted to be sure you were all right.”
“I’m fine. Did you see that tennis match last night?”
“I missed it,” I said.
“It was a heartbreaker. Serena lost to Kerber, a virtually unknown German player, in the final set, 6–4. What an exciting match.”
“Too bad Serena lost.”
“Yeah.”
Soon we’d caught up with Karolyne and Tom in the lobby, and their worries evaporated.
At breakfast, I asked Justice Scalia whether he’d seen the “Cockney Trump” video, in which the comedian Peter Serafinowicz had overdubbed a Trump speech with a deep voice and a tough-guy cockney accent. He hadn’t. So we watched the 90-second video together, as Trump was heard dropping his H’s: “I’m beatin’ ’illary, I’m beatin’ ’illary, and I ’aven’t even focused. We ’aven’t even focused on ’illary.” We both thought it was hilarious, and brilliantly done.
“It’s amazing,” Justice Scalia said, “how readily Trump’s speech patterns fit into a cockney accent.”
After breakfast, we met Polly at the entrance to the Ritz. We were to tour the bird market and the fish market in Central Kowloon and then have lunch at a restaurant called Duddell’s. Because it was rainy that day, we each carried an umbrella. While Justice Scalia took many photographs of fish in aquariums and fish in water-filled plastic bags hanging from aluminum lattices, I took photos of him taking those photos. The fish are all sold as pets—not as food. Until you’ve seen it, you wouldn’t believe the magnitude of the fish market, with shop after shop. The four of us marveled at it.
The same could be said for the bird market, which had endless shops, in street after street, with caged songbirds and exotic birds to be kept as pets. For lunch at Duddell’s, we ate (appropriately) pigeon. The whole bird was served up, including its head decoratively placed on the serving platter.
After lunch, we had a little time to rest before the afternoon event at the Chinese University of Hong Kong. I was to moderate a discussion between Justice Scalia and Justice Kemal Bokhary of Hong Kong’s Court of Final Appeal. The title was “Judges and Democracy,” and the event was nicely covered by a reporter for the Hong Kong Lawyer.55 She wrote: “Professor Garner’s personal and professional relationship with Justice Scalia added a layer of intimacy, as the two affectionately ribbed each other and often finished each other’s sentences.”56
My notes for conducting the interview consisted of nine words: “Stop at 6. Justice. Human rights. Dissents. Purposive/textual.” I wrote them during the 20 minutes when Justice Scalia, Justice Bokhary, and I sat in a conference room across from the lecture hall as the audience gradually took their seats. Justice Scalia and I had already been briefed about Justice Bokhary: he was known for liberal leanings and purposive interpretation, as opposed to textualism. A thin, mild-mannered man who seemed sensitive and introspective, he was also known for legal cartooning, and he had developed an amiable crocodilian character named “Crocky.” On the chalkboard in the conference room that we were using as a greenroom, he drew Crocky and various judge caricatures. It took him only seconds. He graciously presented us with copies of his book Recollections, which we gratefully received.
When the starting time came, we walked into the packed law-school classroom and were warmly greeted by applause from the 120 or so attendees. Justice Scalia and I both noticed Consul General Clifford Hart and his colleague Alissa Redmond—who had twice taken care of us at the airport and would soon be doing it again. We both gave little nods to those we knew, including Karolyne and Tom. After introductions by Dean Christopher Gane, a charming Scotsman, I dove immediately into the first question: “Justice Scalia, didn’t you once say that judges shouldn’t be concerned with pursuing justice when interpreting statutes and constitutional provisions? What did you mean?”
“I never said that,” Justice Scalia responded with theatrical flair.
“I think we both said that in our book,” I said in reference to Reading Law. “Or maybe I wrote that part of the book.”
It was a warm audience, and they laughed. As their laughter subsided, Justice Scalia continued, “Well, I was not the first to say it, I’ll put it that way.” He cited a famous incident in Massachusetts, on the evening of December 3, 1902, when Justice Oliver Wendell Holmes was about to be seated on the United States Supreme Court. An audience member shouted, “Now justice will be done in Washington!” to which Holmes is said to have called back, “Don’t be too sure. I am going there to administer the law.”57
“That is my answer, really,” Justice Scalia said. “Justice in a democracy is what the people deem to be just. Very often my notion of what is just or what is good differs from the people across the U.S.—which is to say the members of Congress. Where there is a difference, it is their notion of justice that should prevail.” He went on to say that he often has to reach results that he considers quite unfair. “But if that’s the law, then in my system of democracy, that is the result I must reach.” Without this view, he said, you can’t really have a democratic system.
Justice Bokhary’s answer was shorter: that people go to law with the expectation that they will receive justice according to law.
I then asked both panelists: “Should a judge at times be unhappy with his or her decisions?”
Justice Scalia answered first: “You show me a judge who is always happy with the results he reaches, and I will show you a bad judge. That means he is applying his own notion of what the result ought to be, instead of the notion of what is required under law.”
Justice Scalia cited another example, saying that his adherence to originalism sometimes forced him to take legal positions that went against his ideological grain. He mentioned United States v. Eichman,58 in which he joined the majority’s 5–4 decision holding that burning the American flag is protected speech under the First Amendment to the U.S. Constitution. “If it were up to me,” he said, “I’d have them put that person in jail right away. I am a very conservative person, but that is just not what our First Amendment says. It protects freedom of speech, including expressive conduct.”
At one point, he raised the example of King v. Burwell,59 the Obamacare case in the Supreme Court. “There was a provision of it,” he said, “which said that the individuals who registered for medical insurance with ‘exchanges established by a state’—that was the language of the statute, ‘exchanges established by a state’—would get subsidies.
“Well,” he continued, “as it turns out, many of the states did not establish exchanges. And the system would not work if so many people did not get subsidies. So my Court said, well, by golly, this thing would not work unless we read ‘established by a state’ to mean ‘established by the federal government,’ and that is how the Court read it. That is purposivism, and that is a good example of how a purposivist would reach a different result.”
Justice Scalia said that he was adamantly against interpreting the statutory language that way: “If the statute will not work, that means that Congress wrote a bad statute. It’s not my job to improve the statute. They wrote what they wrote. Many thought, of course, that what happened is the members of Congress were hoist by their own petard because they were trying to force the states to establish exchanges, and it didn’t work. So should we revise the statute? No, I don’t think so! I dissented in the case.”
Taking this opportunity for a smooth transition, I next invited the distinguished panelists, both famous for their dissenting opinions, to talk about what value dissents have.
Justice Scalia answered first: “Judges have different attitudes.” He disagreed with people who think you should refrain from dissenting unless it’s a really important point in a really important case—especially at the Supreme Court level. “I’ve never signed my name to an opinion that I didn’t think was correct, not only in the result, but in every aspect of its rea
soning. If there is one aspect of the reasoning that I disagree with, then I’ll say, ‘I join in the opinion except for that.’ ”
That way, he pointed out, you can hold your judges’ feet to the fire: “I can be criticized not just for the opinions I have written but also for the opinions that I have joined. That is good. You ought to hold your judges to principle. You want to hold them to be consistent, and that can only be done if you let them dissent and expect them to dissent when they don’t agree.”
And dissents serve other purposes as well, he said. “For instance, I am never more confident of my opinion when I’m writing for the majority than when I have a dissent. When the opinion is unanimous, there is nobody to point out potential flaws in my opinion. When you have a dissenter, the dissenter will poke holes in your weak arguments and you can retrench. And that often happens.”
Justice Bokhary agreed with Justice Scalia, adding that sometimes what begins as a dissent may bring colleagues around so that a different majority is formed.
At the end of the session, a student asked whether Justice Scalia thought it wise to include references and allusions to literature in his opinions—such as Shakespearean quotations.
I quickly interceded, figuring that my doing so would give Justice Scalia a little more time to reflect on his answer. “Justice Scalia has already used a Shakespeare quotation tonight, by using a famous phrase from Hamlet. Does anyone know what it was?”
“I don’t even know,” Justice Scalia said, provoking laughter. Nor did anyone else.
“You said ‘hoist by his own petard,’ a phrase used by the character Hamlet himself. Most people don’t know what a petard is.”
“Well, I just used the phrase, and I know its meaning broadly speaking—‘causing your own downfall’—but for the life of me I couldn’t tell you precisely what a petard is.”
“Can anyone?” I asked, giving everyone in the audience a chance. No one knew.
“It’s a bomb,” I said. “So it means ‘blown up by your own bomb.’ ”
“Really?” Justice Scalia said with a quizzical expression. People were chuckling.
“Yes,” I said. “There’s actually a debate among Shakespeareans about whether it’s petard or petar (without the final d), and people wonder why Shakespeare didn’t write hoisted instead of hoist for the past-tense verb. And then there’s the question whether it’s hoist with or hoist by. You said hoist by even though Shakespeare wrote hoist with. But in literary expression today, hoist by predominates, so you’re on firm ground.”
“Are you making this up? Is that all true?” asked Justice Scalia.
“All true, I promise.”
“That’s why I keep this guy around,” Justice Scalia said. “He’s a philologist, and he’s such a pain in the neck. He knows all sorts of stuff like that.”
The audience seemed to enjoy our repartee.
“But let’s get back to the young man’s question,” I said. “Is it desirable to use literary allusions and references in judicial opinions?”
“If they’re pertinent, and they add insight or interest, I think they’re good,” Justice Scalia answered. “I like them. But for literary references to work, we must expect educated people to have a shared knowledge. And in the age of MultiCulti”—he said it with some derision—“we’re losing the literary core that every educated person was once expected to have mastered. I frankly lament that loss.”
“Me, too,” I said.
Justice Scalia added that he liked literary references and allusions primarily in dissents: “It’s important to make dissents interesting. So I will quote Shakespeare. I will use Bugs Bunny. I will use whatever will attract the attention of law professors and law students.”
A judge from the Isle of Man asked both Justice Scalia and Justice Bokhary whether they thought the need politicians have to run for reelection makes it hard for them to make unpopular but correct decisions. Yes, both said. Justice Scalia mentioned that many American states still elect their judges, some even with partisan elections, and that that kind of system doesn’t encourage good judging. But he added that if the judiciary is wholly independent, without significant fear of political repercussions, correct but unpopular decisions aren’t particularly difficult.
After Dean Gane’s brief closing remarks, the audience applauded heartily. Justice Scalia bolted into the audience to thank Consul General Hart and Alissa for coming. A minute later, though, Dean Gane beckoned him back to the front of the room for photos and the presentation of gifts. This interruption annoyed Justice Scalia, who had been exchanging warm greetings with the group from the U.S. Consulate. In the photos that were snapped after he’d been told to come back, he can be seen frowning with displeasure.
But when the photo session was over and we were back in our holding room with Karolyne across the hall, he said, almost boyishly, “Hey, what’d we get? Let’s open our presents.”
And so we did. His gift was a Chinese chess set; mine was a miniature Chinese screen to put on a desk or shelf.
“What’s this?” Justice Scalia said. “I think I like yours better. I wish I’d gotten that screen instead.”
Karolyne told him, “It’s a Chinese chess set. I’ll teach you how to play. It’s a great intellectual exercise.”
“Okay. Thank you, Lyne.” He still seemed a little disappointed.
Justice Bokhary joined us and talked with us until Dean Gane escorted us down the hall to a reception for students and faculty. Strangely, as we stood amid dozens of students and faculty, no one said a word to us. Justice Scalia, Tom, Karolyne, and I stood there for several minutes while our erstwhile audience members chatted in small groups.
“This is ridiculous,” said Justice Scalia. “Let’s go to dinner now. I’m hungry.”
“I’ll tell the dean,” I said. Wandering off, I returned a few minutes later with the dean only to find Justice Scalia and Karolyne having fun at my expense. “There he is,” Justice Scalia said, “Chatty Cathy! Lyne called you that first,” as they both suppressed a laugh. Whenever she invoked that moniker, any annoyance he felt at my social volubility gave way to amusement. Anyway, I’d located the dean even if I’d spoken briefly with others along the way.
Soon Dean Gane led us down two sets of escalators to a dinner in a restaurant housed in a connected building. The dinner got off to a rocky start. We were late—something Justice Scalia deplored. And when we arrived, there were no introductions: we were simply taken past the other tables. This seemed like a social blunder. We were in a private room with perhaps five tables. We were seated at the head table—Justice Scalia beside Karolyne and Dean Gane but opposite me at a huge round table for 10 or 12—and no waiters came around. They were on the periphery of the room doing what appeared to be busywork. They didn’t approach our table, and after three minutes Justice Scalia was irate.
He said to me across the table, “Where are the waiters! I’m ready to order a drink.” Justice Scalia went over to the corner where the waiters were huddled and asked them to take our drink orders. He came back and sat down, obviously perturbed because we didn’t even have our water yet. As the waiters tarried, he said, “I’ve sat here for five minutes!”
I looked around the room, stood, and summoned the waiters to tell them they should visit our table immediately—but, inexplicably, to no avail. The dean sat impassively at first but became concerned as Justice Scalia’s ire intensified. “What kind of place is this?!” Justice Scalia said.
I jumped up, took a bottle of wine, and instructed the waiters to pour immediately. A waiter kindly took the bottle from me, and I sat back down. She started pouring, but at the front tables where people had been only incompletely seated. So I jumped up again and asked her to start with my table, and specifically with the man on the far side—Justice Scalia. Once she had done so, all was well, and the rest of the evening went smoothly, with a fair amount of academic talk at our table.
Going Walkabout on February 2
On Tuesday, our
group of four again met in the gym at 7:00 a.m. Justice Scalia and I went through the same routine as we had before: ten minutes on the recumbent bicycle, shoulder exercises, and then light weights. “Let’s do this leg-extension machine today,” Justice Scalia said. “Why didn’t we do it the other day?”
“We shouldn’t do that one, Nino. We’ve both had our knees scoped.”
“No, it’s fine,” he said. “You just have to do it right.”
“My knee doctor told me not to under any circumstances.”
“I’ve looked into this,” he said. “You just have to start with the machine farther up. Don’t do it with your leg cocked back.”
“Really, Nino, I think it’s unwise for either of us.”
“Come on. Get on.” He pushed me a little, and I relented. “Look, we set the machine so that your leg starts out almost fully extended, and then you take it up the last bit. Do five reps.”
I did it, reluctantly. Meanwhile, I was curious about how he knew so much about this one machine when I had needed to show him how to use all the others. But I was humoring him. Then I got off, and he did the same.
It wasn’t until we were walking out to the elevator that I realized that my right knee, the one I’d had scoped, was aching—suddenly pretty badly. I mentioned it at breakfast, jovially, noting that it wasn’t a good day for knee aches, given the walking tour we had ahead of us. “Oh, you’ll be fine,” Karolyne said reassuringly. She had stressed to the tour company that we wanted a light walking tour—no serious hoofing around the city.
Our walking tour of Hong Kong’s Central District was to be led by an Englishman with supposedly strong walking-tour credentials. The day got off to a shaky start, though, as the tour guide—I’ll call him Basil Middlemiss—was late. We were downstairs in front of the Ritz-Carlton, just where we had always met Polly, at the appointed time of 9:00 a.m. No guide was in sight. By 9:10, Justice Scalia was getting unhappy, and so was I, so I walked outside to check with each of the three van drivers to see whether any of them worked with Basil. The last one said he did, and he pointed back inside where we had all been standing. I went back in.
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