Reading Law at the University of Hong Kong
Later that day, at the University of Hong Kong, there was concern over student protests. A week before our appearance, students had besieged a meeting of the university’s governing council and trapped members for several hours. We’d been warned by the State Department, which sent a security detail to accompany us—at least one that we knew about. He was a former air marshal who seemed ultraprofessional. Always alert, he was exceedingly courteous and impressively knowledgeable. He was a fan of Justice Scalia’s, and he was interested in the subject of our presentation on Reading Law. He stayed near us all the time we were on campus. But no protesters ever came into view.
Our late-afternoon event that day was to be a joint talk on legal interpretation. Backstage, the dean, Michael Hor, asked us to take our seats onstage before the introduction. Karolyne said no: we’d wait till the introduction was finished and then walk out during the applause and take our places. The auditorium was packed as Dean Hor walked out to introduce Justice Roberto Ribeiro of the Court of Final Appeal. He in turn introduced us while we were sitting backstage.
“I was just thinking, Nino,” I said.
“Yes?” he said.
“Here you are—making one of countless appearances touting textualism, your brand of judicial decision-making. You’re hoping to sway the audience to your point of view.”
“Of course.”
“And presumably Justice Breyer and Justice Ginsburg are out doing the same, promoting their methods.”
He stroked his lower lip with his middle finger, contemplating what I’d said, and then answered: “I don’t think so. No. I’m the only one promoting a judicial method. They don’t really have one to promote. So-called ‘pragmatism’ is just saying ‘trust me to do the right thing.’ That’s not a method . . . Hey, wait a second, I left my reading glasses at the hotel! Now I can’t read my notes!” He was exasperated, and with his abrupt change of topic we never resumed our conversation about other Justices’ trying to spread the ideas underlying pragmatism.
“Here. Use my reading glasses.”
“Let me try them.” He tried them on.
“They look great!” said Karolyne while snapping a photo as Tom did the same. It was the quintessential photo of the trip: he was posing for Karolyne, and Tom captured the three of us as Karolyne’s photo was being taken. He liked the glasses, and we agreed to share them as necessary. But when we emerged from the curtains amid enthusiastic applause and took our seats, Justice Scalia sitting to my left, he laid down the glasses to his left—well out of my reach. Then, much to my surprise, he never touched the glasses throughout our presentation. At least they gave him the security he needed: they were available if necessary.
“Ladies and gentlemen,” I began, “we’re here to talk about our second book, Reading Law. It took us three and a half years to write, and it’s fair to say that it’s the most comprehensive treatment of textual interpretation ever written for lawyers and judges.”
Then he jumped in: “It’s the first hornbook-style treatment in more than a century. Henry Campbell Black wrote a hornbook on legal interpretation in 1911, but no one else has even tried since.”
“That’s right.”
We gave what had become our standard performance, discussing one-third of the canons in Reading Law and then administering our five-question quiz to the audience. A member would have to solve a posited problem of statutory construction and cite the correct textualist rationale. The answer would always have to do with how a reasonable person would interpret statutory words, never how a reasonable person would solve the problem (which would involve the judge’s policy preferences). That’s the basic distinction between a textualist and either a purposivist (who asks what the legislature would have wanted) or a consequentialist (who asks about the preferred outcomes).
At the end, we had time to take questions. Perhaps the most difficult question Justice Scalia ever received from an audience member arose that evening at Hong Kong University. It was a question that I had posed to him several times privately after being prompted by Sir Christopher Ricks. The question is this: what if meaning is stable and fixed, but not its application? The word cruel, let’s say, meant “intentionally causing pain and suffering” or “willfully brutal” in the 18th century, and it means the same thing today. But our understanding of what constitutes cruelty has changed over time. The meaning is the same, but not its application to real-world referents. How do we solve this problem of originalism?
It’s a question that Senator Joe Biden asked my coauthor in 1986, during his confirmation proceedings. In that year, before the Senate Judiciary Committee, he responded: “I think that there are some provisions of the Constitution that may have a certain amount of evolutionary content within them.” He said he hadn’t firmly made up his mind. But 30 years later, he had made up his mind when it came to the Cruel and Unusual Punishments Clause. If lashing or notching of the ears wasn’t cruel and unusual in the 1780s, then it’s not a violation in 2016. “We just hope,” he said, “that the legislature doesn’t revive those practices.”
So Justice Scalia came to dismiss the conundrum as mere wordplay. “It’s nonsense,” he said, “to say that the meaning and its practical application are different. If they were different, it would be a verbal free-for-all: each generation gets to decide for itself what’s cruel and has to engage in all sorts of hand-wringing over whether applications have changed. Then there’s no real permanence of meaning at all. Applications and meaning are convertible.”
The Cruel and Unusual Punishments Clause is a special case, as Justice Scalia noted that evening. The Fifth Amendment contains three separate passages in which the acceptability of the death penalty is contemplated, and the Fourteenth Amendment contains another:
• “No person shall be held to answer for a capital, or otherwise infamous, crime, unless . . . .”60
• “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”61
• “Nor shall be . . . deprived of life, liberty, or property, without due process of law.”62
• “Nor shall any State deprive any person of life, liberty, or property, without due process of law.”63
To a textualist, if the text itself conveys permissibility, then the death penalty can’t, over time, evolve into per se prohibited status—not if the Constitution is a document that we’re interpreting. Justice Scalia was delighted when I once presented him with a passage in which Chief Justice Burger had made just this conclusive point. To prohibit the death penalty, he’d said, we’d need a constitutional amendment.
Justice Scalia liked to point out to audiences, as he did at Hong Kong University, that no fewer than four colleagues with whom he had served on the Supreme Court—Justices Brennan, Marshall, Blackmun, and Stevens—had adopted the view that the death penalty is in all instances unconstitutional, despite the text’s own clear implication that it’s entirely allowable. He cited this as evidence that what they were actually doing was “constitutionalizing” their own policy preferences instead of interpreting a written Constitution.
The audience was warm and receptive, and they seemed every bit as informed as an American audience.
Immediately after, we were met by a minibus to transport eight of us to our dinner destination. The dinner that evening at Peking Garden Restaurant, in Alexandra House, was excellent, and the service was impeccable. We had interesting conversations, and Dean Hor remarked on how dramatic our entrance had been: by waiting until we were announced to come onstage as opposed to sitting there throughout the introductions—we created a much more dramatic effect and, he thought, generated more applause.
About 30 minutes after appetizers were served, a local lawyer who had come just for the dinner announced that he would have to leave. He was dressed in jeans and a sweater. He was a Westerner, and his native language was English. Once he had the entire table’s attention, he said: “Justice Scalia, t
hank you for coming. I didn’t attend your lecture because I’m really busy. And now I must go to my daughter’s field-hockey game. So forgive me for leaving. But thank you for coming.”
That was an odd moment, and the man struck me as a boor—or perhaps a yabber. Justice Scalia smiled graciously and wished the man all the best for his daughter’s field-hockey team. He asked how old she was. The answer was 12. “Yes, attend to your daughter,” Justice Scalia said, “because these years will be fleeting. She needs all the attention you can give her.”
Antonins and Ninos
Karolyne and I had a friend, the distinguished German lawyer Anton Maurer, who was in Asia at the time of our trip. Anton decided to attend our lecture at the University of Hong Kong, and he stayed at the Ritz-Carlton for several days—often having breakfast across the room from us. At one point I introduced Justice Scalia to Anton at the omelet bar. Once we were out of Anton’s earshot, Justice Scalia said he was most curious about why a lawyer from Stuttgart would travel to Hong Kong to see one of his lectures. “Nino,” I said, “we have the Deemster who came from the Isle of Man to see you. In Anton’s case, I’m sure he wanted to see us perform together to find out whether I’ve been exaggerating about how we work together!”
“Nice fellow,” Justice Scalia said.
Gradually, Anton became a quasi-member of our group. At breakfast on the next-to-last day, Justice Scalia said, “Pull up a chair, Anton, and join us.”
Soon we were talking about Anton’s international legal work and Justice Scalia’s knowledge of German law—and the funny story about how, when he was first promoted to the D.C. Circuit, Justice Scalia’s European friends thought something had gone wrong with his career. Continental law professors, he explained, are revered while judges are held in fairly low regard; in the United States, by contrast, both are respected but judges are particularly exalted.
Once he’d gotten to know Justice Scalia better, Anton wanted to know how “Antonin” became “Nino.” Where did the o come from?
“That’s easy,” said Justice Scalia. “I had an Uncle Antonino, and my nickname came from him. For some reason, my parents named me Antonin instead of Antonino. Maybe they thought it was more anglicized.”
“You’re probably the most famous Antonin who ever lived,” I said. “I’d say you outrank Dvořák.”
“You think?” he asked.
“I do. Can you think of any other famous Antonins?” I asked.
“Come to think of it, I can’t,” he said.
“And no other famous Ninos, either,” I said. “When I interview you about your life, I’m going to ask you all about your uncle Antonino. He had a bad temper, didn’t he?”
“How did you know that?” Justice Scalia looked baffled.
“I have my sources,” I said, grinning.
The reference to my interviewing Justice Scalia was about our planned series of biographical interviews. Over ten or so 60- to 90-minute filmed segments, I would ask all about his life, his interests, and his beliefs. This plan had been hatched over dinner in 2013 when he told me he’d never write an autobiography, and we agreed that the painless way to do such a work would be through these interviews—and that I’d publish the book posthumously, or earlier if we agreed to it. We reconfirmed the plan several times and agreed in Hong Kong to begin shortly after our return.
Some Unsettling Soothsaying
On this Wednesday, our last full day in Hong Kong, we were scheduled for a tour of the Chi Lin Nunnery (Buddhist) and then the Wong Tai Sin Temple (Taoist). As we got into the van, I followed the usual protocol of ensuring that Justice Scalia had satisfied the 60% rule. Once I was in, I said to Polly, with artificial drama, “To a nunnery, go, and quickly too! Get us to a nunnery!”
“Are we in a hurry today?” Polly asked.
“No,” said Justice Scalia. “He’s just having fun paraphrasing Shakespeare.”
“You know which play, Nino?” I asked him.
“Of course I do. Hamlet.”
“Yes,” I said, “it’s that painful scene with Ophelia in which Hamlet says, ‘Get thee to a nunnery, farewell. Or if thou wilt needs marry, marry a fool, for wise men know well enough what monsters you make of them.’ Don’t worry, Lyne, that’s not really true.”
“How do you know the lines so well?” asked Justice Scalia.
“I acted in Hamlet in high school. I was Polonius. ‘Neither a borrower nor a lender be, for loan oft loses both itself and friend, and borrowing dulleth the edge of husbandry.’ And so on. Did you ever act in Shakespeare?”
“Yes,” said Justice Scalia. “I was Macbeth.”
“Wow. The lead role,” I said.
“Yes. ‘Is this the dagger which I see before me, the handle toward my hand?’ ” He was using the low, gravelly voice. “ ‘Come, let me clutch thee.’ I made a pretty good Macbeth.”
“I’ll bet you did.”
“You know,” I continued, “you’ve been calling me your uncle. If you want to be Shakespearean, you should call me your nuncle.”
“Nuncle?” he asked. “My nuncle?”
“It sounds the same as mine uncle. Hamlet says that: ‘I’ll have these players play something like the murder of my father before mine uncle.’ ”
“Well, does he say mine uncle or my nuncle?”
“I can’t remember. But nuncle is used elsewhere in Shakespeare, I promise. I think it’s in King Lear.”
“Okay, nuncle. You’re now my nuncle.”
“ ‘Mark it, nuncle,’ ” I said. “ ‘Have more than thou showest, speak less than thou knowest.’ ”
“So true, nuncle,” he said. “So this place we’re going . . . why do they call it a nunnery? Why not a convent or an abbey?”
“Maybe those words are too closely associated with Catholicism,” I said. “This place is Buddhist.”
“Yes,” Polly said, “it’s a Buddhist nunnery.”
“Hong Kongers really do use a lot of old-fashioned English words,” I said.
Once we arrived, Justice Scalia took many photographs of buildings, walls, fences, and fountains. I took photos of him taking photos. What sounded like a monk’s voice was coming over a loudspeaker throughout the nunnery, and he and I were pretty certain it was a recording—until, in one of the rooms, we actually saw the nun (it turned out to be a female voice!) chanting into a microphone.
At the colorful Wong Tai Sin Temple, we saw dozens of Taoists kneeling and practicing sortilege: shaking sticks out of tubular containers—the traditional Taoist method of divination by consulting the I Ching. Polly told us, with great earnestness, that people come to this temple to help them make decisions—whether to marry, whether to divorce, whether it’s a propitious time to get pregnant, and so on. Having seen this sort of thing before in Asia, I had more fun watching Justice Scalia soak in the experience than I had watching the superstitious folk.
“Do you believe in this, Polly?” Justice Scalia asked.
“Yes, I do,” she said.
“So you’re a Taoist?”
“I’m both Buddhist and Taoist.”
“Do you come here to shake out the sticks?”
“No, I don’t do that. But I do believe in it.”
Justice Scalia’s eye caught a sign: “Soothsayer’s Stall.”
“Look at that! They have a soothsayer. Now that’s a word you don’t see every day.”
“True,” I said. “Sooth is an Anglo-Saxon word meaning ‘truth.’ It’s literally a truth-teller, but really, as you know, it’s a fortune-teller.”
He snapped several pictures of the sign, and I photographed him doing it.
“Let’s go see the soothsayer,” I said.
“What does he do?”
“He probably reads palms. Karolyne, let’s go get our palms read!”
Polly added that the soothsayer reads not only palms but also faces, and he interprets the sticks that get shaken out by those engaged in the sortilege.
“Are you serious?” ask
ed Justice Scalia. “You’re going to get your palms read?”
“Sure. I’ve done it before. Apparently I have good palms—if I pay enough money.”
The five of us walked through an arcade to the soothsayer’s stall. There were two palm-readers, a man and a woman. Karolyne asked the price for two palms, and the man quoted a fee amounting to about $10 U.S.
I went first. He said, in fairly good English, that I would have a good life. I figured it would all be generalizations of this kind. Then he said that I have two children, both daughters. The correctness of that point was surprising. Then he said I’d live to be 89—“easily.”
As for Karolyne’s palm, he correctly said that she had no children. She would have a good life, never be in want, and live to be 88—“easily.”
Each act of palm-reading took only about two minutes.
“Nino,” I said, “get your palm read.”
“No,” he said.
“I’ll pay for it. Come on! Let’s see if he knows how many children you have.”
“No,” he said adamantly, walking away with determination.
“Come on, Nino!” I said, following him back out. “It’s like the carnival, where they try to guess your age or weight. Let’s see if he knows how many children you have.”
“No! I don’t want to know when I’m going to die.”
That stopped me in my tracks. “Okay. I’m sorry, Nino,” I said, trying to catch up with his brisk exit. I had no idea he’d take it so seriously. The date was February 3, 2016.
You Call Everybody Darling
We walked outside where there were twelve enormous bronze sculptures of animals representing the Chinese zodiac. I posed with the dog, Karolyne with the rooster, and both Justice Scalia and Tom with the rat. Justice Scalia wanted to know the zodiac animal of his wife, Maureen. Karolyne and Polly figured out that it was the rabbit. He lingered with the smiling, anthropomorphic rabbit sculpture for quite some time, touching its arm and posing for photos. He got choked up when he laid hands on the rabbit. As I walked up beside him, he said, “I miss Maureen.”
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