Sunday afternoon, I called and left a voicemail. I said that arrangements had been made with the jade dealer. I also asked the Scalias to have dinner Monday night, since I’d be in Washington that evening before an all-day Tuesday seminar for a D.C. law firm. I never heard back about that.
But Wednesday morning, February 10, when I was back in Dallas, Justice Scalia called my cellphone. “Bryan, you’re in town!”
“No, Nino, I’m afraid not. I’m back in Dallas. I was in Washington Monday evening.”
“Oh, I was up in New York giving a talk.”
“Traveling again so soon? You need to rest up,” I said.
“I know, I know,” he said. “Listen, I have something important to tell you.” I was listening intently. “The world of tennis has lost a great competitor.”
I was at a loss. Serena Williams had died? Roger Federer?
“What do you mean?”
“My doctor tells me I won’t ever play tennis again. It’s a torn rotator cuff that’s already been fixed once, and it’s no use operating a second time.”
“What?! I had you doing exercises for what we thought was a frozen shoulder. That’s not what it was?”
“That’s not what it was,” he said solemnly.
“I may have made things worse with all that stretching!”
“No, not at all. I’m fine. I just won’t ever be able to serve a tennis ball again. As I say, the world of tennis has lost a great competitor.”
“Well, you certainly were that. You remember when I watched you play at your club? You were a fierce competitor. I’m sorry, Nino. I know how much tennis means to you.”
“I’ll just have to live without it,” he said matter-of-factly.
We spoke more about the jade necklace, about the three volumes of his speeches I was editing for him, and about the final strokes we needed to complete the second edition of Reading Law. He thanked me again for my role in arranging the trip to Singapore and Hong Kong.
I noticed an unusually crusty quality in his voice.
“You sound as if you have a cold,” I said.
“Yeah, I came down with it over the weekend. Just some crud in my throat.”
“That’s too bad. Rest up.”
I wish I had been more insistent about rest. His domestic travel schedule was typically one event after another. He said nothing in that conversation about preparing to leave shortly for his Texas hunting trip.
* * *
54529 U.S. 120 (2000).
55. Cynthia G. Claytor, “An Evening with Justice Antonin Scalia and Justice Kemal Bokhary,” Hong Kong Lawyer, March 2016, at 14ff.
56. Id.
57. Fred Shapiro, The Yale Book of Quotations 368 (2006).
58. 496 U.S. 310 (1990).
59. 135 S.Ct. 2480 (2015).
60. U.S. Const. amend. V.
61. Id.
62. Id.
63. Id. amend. IV.
Epilogue
Justice Scalia died two days later, in his sleep, on the first night of the hunting trip.
It was a wrenching moment when I found out, and the wrenching moment turned into a wrenching month and a wrenching year. Life hasn’t been the same.
What began as an interview request, prompted by David Foster Wallace, evolved into a joint writing project. Back in 2006, I thought it would be a fascinating diversion. But soon my life had been transformed. Justice Scalia had befriended me, and his loss has caused a more profound hurt than I could have imagined.
Of course, loss is a familiar story. Someone you love and cherish is there one moment and gone the next. As Gertrude, Hamlet’s mother, says callously to her son about her late husband’s death, “Thou know’st ’tis common: all that lives must die, passing through nature to eternity.”
“Ay, madam,” says Hamlet. “It is common.”
But hurts of this kind are always particular. I miss him terribly. I lost a coauthor, an adoptive uncle, and a dear friend I never expected to make. Having reached midlife by 2006, I never thought I’d strike up a new friendship that would alter the course of my life—especially when all I sought, initially, was a videotaped interview with a person of great eminence, and the interview itself seemed unattainable.
The closeness that developed between us surely took us both quite by surprise. We had conversations that only the two of us could have—Nino and me. I can’t have those conversations anymore, with anyone.
The only thing that brought Justice Scalia and me together, in the beginning, was our love of words—the same thing that, improbably enough, brought me together with David Foster Wallace. I suppose that Justice Scalia found something in me—a love of language—that reminded him of his father, the professor of Romance languages. What strengthened our bond, of course, was our joint literary enterprises. And food, wine, and conversation. And argument. And, in the end, Karolyne.
In retrospect, the friendship that developed between us seems to have been simultaneously both impossible and inevitable. As different as we were in some respects—you’ll have gleaned as much from this narrative—we were also very much of one mind.
Gone is the nucleus of a small society of snoots who were confederates and mutual admirers. He was a passionate man who, because he thrived on argument, imbued almost every situation with some degree of drama and tension. Soon after starting our collaborative work I came to love the man, and our continuing projects—appearance after appearance together both onstage and offstage—only intensified that feeling.
To have him snatched from this world, at the height of his powers, was tormenting. It still is. It’s not that so many projects were left uncompleted. Not that. It’s that he himself has vanished—this man so unlike any other, who made the most of his considerable gifts, whose uncommon blend of qualities will never be replicated.
I miss him. Terribly.
I don’t care if he despised one-sentence paragraphs, or for that matter contractions.
To use a snoot’s metaphor, he was truly a hapax legomenon.64
Beyond Personal Loss
America’s loss, too, is a particular one. We lost our most consequential, powerful snoot: the connoisseur of language whose pronouncements about words had the greatest, most far-reaching impact on the world.
Stated differently, America lost its leading textualist: its leading legal exponent of the straightforward idea that words deliberately written typically have an ascertainable meaning, certainly those included in legal instruments such as contracts, rules, regulations, statutes, and constitutions; that they can and should be given a fair reading; that legislatures should be taken at their word; and that, equally to the point, our Founders knew what they were doing when they committed their Constitution to written words.
Within American legal academia today, believe it or not, it takes courage to take such positions. The modernist orthodoxy is that words are notoriously indeterminate; that there is an amorphous constitution that exists outside the written Constitution; that all judges are inevitably political, and that therefore we should allow them to be openly political; that the people as a whole can’t be trusted to make wise decisions for themselves, and that therefore a kind of judicial aristocracy is preferable to democracy, which is slow and messy; that progressive thinkers know best what paths society should take, not society itself—so that judges should go around and behind the words of governing texts to enact their own visions of what they consider wise policy.
Straw-man positions, you say? No. These are all but dogmas.
Antonin Scalia set his face against all these notions. He thought that if the Constitution needs to change, it must change through amendment—the very mechanism for change provided for in the charter itself. He didn’t believe that it can truly evolve on its own, or on the whims or desires of five unelected judges who decide it’s time for a new constitutional policy. Likewise, according to his convictions, statutes can be changed only by amendment, not by judicial alteration.
But don’t we leave the diffi
cult decisions to judges if the legislature can’t work them out? Not always, in the view of a textualist such as Justice Scalia. What’s not in the Constitution simply isn’t in the Constitution. And what’s not in a statute simply isn’t there. The people will need to act democratically to add things, if additions are needed. The Constitution has a provision saying how it can be amended, and that provision says nothing about having judges graft new provisions onto the document. (This point isn’t without difficulty, since the amendment process, with its required supermajorities and voting by states, is arguably undemocratic.) Whether you like that position or not, it’s a principled one.
If Justice Scalia was widely misunderstood, that fact was attributable, I think, to three things. First, he had an inveterate tendency, dating back to his professorial days, to “teach against the class”—to voice positions that listeners were almost certain to disagree with in order to generate a better discussion. He would therefore frequently play the devil’s advocate in an argument to test the limits of a position with an extreme hypothetical case. Second, he was linguistically conservative (and, I think, naïve) enough to adopt prevalent labels that had been devised by those he opposed: Living Constitution, pragmatism, purposivism, and realism. To him, these words connoted disreputable things. In one way or another, they represented bad, unprincipled judging, and he could make a compelling case for why that was so. But for people unfamiliar with his arguments, these words—and therefore the ideas they represent—have positive associations. So he and his audience often had a kind of semantic mismatch. Third, because most people never get past the headlines, most knowledge of Justice Scalia was filtered through reporters who weren’t sympathetic with the conservative results often reached by his brand of textualism. Besides, most Supreme Court outcomes are reported as if the judges are freewheeling policy-makers who are unconstrained by method. Justice Scalia’s teach-against-the-class habit made him a target of parodists. Hence, unless you were a pretty serious student of the Court, you’d hardly know that he was a towering intellect.
He was. And we are unlikely to see his like again. I know I won’t.
An Explanatory Analogy
How, exactly, did this whole relationship change my life? That’s hard to explain. I might have thought the general idea to be obvious, but as with so many profound personal experiences, it seems impossible to convey its full significance in any effective way—or even to comprehend it myself.
Analogies appealed to us, Nino and me, so let me try with an admittedly imperfect one that just may get the idea across. Envision yourself as a youngish, minor singer–songwriter in 1971. A prominent musician who’s a friend of yours says you should get together with John Lennon. And so, with some difficulty and a little luck, you arrange a meeting. To your delight, you discover that Lennon is vaguely a fan of your work, and the two of you hit it off remarkably well. You feel a visceral bond. You keep in touch. Soon you begin writing songs together. After a turbulent start, you grow quite close and compose and record some of the best work that either of you has ever done—on two albums. The prolonged recording sessions are exhilarating. Fans of Lennon laud the recordings; your own small cadre of fans seem almost as excited about the collaboration as you are.
You have endless jam sessions whenever you’re in the same town. You even start touring together and soon learn that Lennon actually prefers performing with you to appearing solo. The crowds overflow with enthusiasm. You well understand that you’re the sidekick, not the superstar. The extended standing ovations are for him, not you. But he insists that you’re his partner and deserve equal recognition: during performances, he routinely alternates the lead with you. You love almost everything about his personality, his humor, his tastes—just being with him—and your feelings seem to be fully reciprocated. He wants to travel with you and your spouse on a two-week trip half a world away, just the three of you (along with your record-company exec), traveling more or less incognito. You play a few private gigs, but otherwise this trip is just for pleasure. The adventure is transformative, at times almost otherworldly. The three of you fly back home, happy and in good health.
Then, just shy of the tenth anniversary of your friendship, he dies unexpectedly. He’s gone, and you have almost nobody to grieve with except your loving spouse—and, in a much more abstract and universal sense, Lennon-lovers everywhere.
Why should that change a person? I don’t know. It just does. It’s hard to understand, and even harder to express, without an analogy. I’m sure Nino, after careful contemplation of his ceiling, would have hit on—no, upon—just the right words. He always did. I also suspect that he might not appreciate my draft, associating him in this way with one of those “rock-’n’-rolly” Beatles. Perhaps it’s the subversive in me, but it seems apt. Anyway, it’s the best I can do. After all, I was the sidekick—an honor I shall forever cherish.
* * *
64. In the strict sense of the word (which, of course, is the sense that he preferred [see pp. 36–39]).
Postscript
This story began with three professional snoots—a linguistic triumvirate, of sorts, in different fields: a novelist, a lexicographer, and a textualist judge.
By late 2008, there were but two.
By early 2016, there was but one—and the least one at that.
He is grateful that the other two considered him worthy of their company.
He remains a devotee of Charlotte’s Web, by the redoubtable E. B. White. The moral of that story, of course, is that it isn’t often that someone comes along who is both a good writer and a true friend.
Acknowledgments
I wrote this book for several reasons. First, it was therapeutic. As best I could, I wanted to make sense of the experiences recorded here, and writing about them has certainly helped. Second, I couldn’t not write the book. I’m a writer, and writers write. Third, I felt and continue to feel certain that Justice Scalia would have liked having our story told. We had an agreement that the first of us to die would receive a tribute from the survivor—though, I’m sure, when we had that discussion on more than one occasion, neither of us figured it would be a book-length treatment. In any event, he would have insisted that every word of it must be true, as I have faithfully tried to make it. Fourth, when I considered the possibility of keeping it all to myself, that course of inaction seemed like a dereliction to posterity and to the pursuit of knowledge. Unlike a Court employee, I’m not bound by a code of silence. Although that certainly doesn’t relieve me of a duty of discretion, it does mean that writing an intimate memoir entails no conflict of interest.
My debts are many. My wife Karolyne, who was directly involved in so much of the story, helped me reconstruct innumerable snatches of dialogue. Her readings of the manuscript proved invaluable. My daughter Caroline was similarly helpful with the early portions of the book. My team at LawProse—Jeff Newman, Tiger Jackson, Becky Moler (formerly McDaniel), Ryden McComas Anderson, Christina Gigliotti, Elizabeth Nanez, and Alyssa Bolin—read and commented on dozens of drafts, improving it each time. Several long-standing friends of Justice Scalia’s suggested improvements. So did friends of mine: J. P. Allen, Herb Hammond, Ryan Killian, Brian Melendez, Judge Thomas M. Reavley, John Scanlan, and Randy Tietjen. My friend Judd Stone, one of Justice Scalia’s last law clerks, pored over the manuscript twice to make dozens of enhancements. My longtime friend and colleague John Trimble, whose name comes up in the book more than once, skillfully line-edited a draft. So did my editor at Simon & Schuster, Mitchell Ivers. My agent, James Levine, suggested the final title. To say I had a little help from my friends would be a severe understatement.
Among all my various books, this one was particularly challenging and emotionally difficult. Now that it’s done, a melancholic milestone has passed—but the melancholy persists. I’m reminded that the pain of grief is the price we all pay for having loved.
B.A.G.
23 August 2017
About the Author
B
RYAN A. GARNER, editor in chief of Black’s Law Dictionary, is the author of more than twenty books, including The Law of Judicial Precedent (of which he is the lead author along with twelve appellate-judge coauthors—including Supreme Court Justice Neil Gorsuch); Garner’s Modern English Usage (4th ed. 2016); The Chicago Guide to Grammar, Usage, and Punctuation; Quack This Way: David Foster Wallace and Bryan A. Garner Talk Language and Writing; and The Rules of Golf in Plain English (4th ed. 2016). He is also the author of two books with Antonin Scalia: Making Your Case and Reading Law.
Garner is among the world’s most widely cited legal scholars. His writings have been cited with approval by every appellate court in the country, both state and federal. Although he holds the title Distinguished Research Professor of Law at Southern Methodist University, he also teaches at the law schools of Texas A&M University and the University of Texas.
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OTHER BOOKS BY BRYAN A. GARNER
Reading Law: The Interpretation of Legal Texts with Justice Antonin Scalia
Making Your Case: The Art of Persuading Judges with Justice Antonin Scalia
Quack This Way: David Foster Wallace and Bryan A. Garner Talk Language and Writing
Garner’s Modern English Usage
Garner on Language and Writing with foreword by Justice Ruth Bader Ginsburg
Black’s Law Dictionary
The Law of Judicial Precedent with 12 appellate-judge coauthors, including Justice Neil M. Gorsuch; foreword by Justice Stephen Breyer
Nino and Me Page 42