A Rich Contribution to Supreme Court Literature
By Jean RosenbluthMarch 15, 2018
Nino and Me by Bryan A. Garner
Nino and Me tells the story of the pair’s writing partnership and the friendship that grew out of it. It’s an intimate, “underneath the robes” look at the modern era’s most polarizing judicial figure. Scalia secured that title during the recent presidential election, when the types of judges the candidates would select for the Supreme Court became a central issue, in particular whether they would be sufficiently “like Justice Scalia.” (But Garner can’t and doesn’t claim that Scalia was the modern Court’s most influential Justice. As sometime Supreme Court advocate and Berkeley Law School dean Erwin Chemerinsky likes to quip, if he could file his Supreme Court briefs with a portrait of Justice Anthony Kennedy on the cover, he would. Indeed, Scalia’s strict textualism rendered his views fairly predictable, Garner implies — not “infers,” a frequent misuse that Scalia found particularly distasteful, Garner tells us — and therefore his was rarely the “swing” vote.)
Garner’s relationship with Scalia got off to a rocky start. They met in 1988, when, “at the age of 30” — the first of several details offered seemingly only to boost the author’s bona fides — Garner was a “featured speaker” at the British Embassy in DC. Determined to meet Scalia, who was in attendance, he interrupted the Justice’s discussion with senator and recent vice-presidential candidate Lloyd Bentsen and Democratic power broker Robert Strauss to introduce himself. Scalia said a few words to him — three, exactly — and then turned back to his conversation.
They did not encounter each other again for 18 years, when Garner approached Scalia to sit for one of the videotaped interviews of judges he conducts as part of his lawyer-training business. Scalia turned him down several times and stood him up twice, but Garner persisted, and eventually Scalia agreed to the interview. They quickly bonded over how much more exacting Webster’s second is than the third edition, their appreciation for legendary grammarian H. W. Fowler, and textualism, and thus (not “thusly,” as Garner tells us he had to correct Scalia) began a decade-long friendship between the two self-proclaimed “snoots” — an acronym coined by David Foster Wallace for “syntax nudniks (or nerds) of our time.” The interview led to further collaboration, including two influential books on legal writing and advocacy, Making Your Case: The Art of Persuading Judges (2008) and Reading Law: The Interpretation of Legal Texts (2012).
Garner apparently kept contemporaneous notes of his encounters with Scalia; perhaps he had a book like this in mind from the very start of their relationship. As he reminds us, unlike the law clerks and other Court staff with whom Scalia spent much of the last 35 years of his life, Garner is not “bound by a code of silence.” And dish he does, though certainly with great affection. Still, among the episodes he recounts are some when Scalia was acutely mindful of maintaining the dignity of his position, refusing to have his photo taken next to an artist’s sculptural naked self-portrait or appear on The Colbert Report or The Daily Show to promote one of their co-authored books. Would he really have wanted the world picturing him in his boxer shorts and sock garters or padding through a hotel in a robe on his way to a massage, among similar vignettes? Garner “felt and continue[s] to feel certain that Justice Scalia would have liked having our story told,” but one wonders whether he would have approved of the more personal revelations. But that is Garner’s weight to bear; the reader need only be grateful for the rare opportunity to learn whatever he or she can about one of the law’s most legendary figures. (Garner: Always use gender-neutral language; Scalia: “He” and “him” mean everyone, as everyone knows.)
Working in rather rigid chronological order, Garner tells us about seemingly every moment the pair spent together. Inevitably, some are less interesting than others. Here’s Garner showing Scalia how to use a stain remover, explaining what ibuprofen is, telling him what shoulder exercises to do. Perhaps these episodes are meant to portray Scalia as more vulnerable and human than his public persona let on, but even the most interesting man in the world couldn’t make laundry compelling.
And the focus on Garner as teacher is perplexing; indeed, it’s almost a theme of the book. As great an intellect as Scalia was, he apparently had a lot to learn from Garner. After many such “lessons,” he is said to have exclaimed, “Amazing!” or something similar. Garner no doubt learned a great deal from Scalia, too, but we don’t hear as much about that. His praise for the Justice is more often in the form of marveling at his wit and charm, of which he apparently had plenty, rather than his genius.
But despite these awkward undercurrents, the book accomplishes what Garner says he set out to do: by the end of it the reader “thinks better” of Justice Scalia. The Justice was infamous for his stinging dissents and disdainful judicial opinions mocking those who disagreed with him. In one of the most fascinating bits in the book, Garner tells how Scalia once asked his advice on how far he should go in criticizing a colleague’s writing; he wanted to say that he would rather “hide [his] head in a bag” than join such a poorly written opinion. Garner advised against it — “you must be magnanimous” or you’ll “sound like a bitter old man” — but Scalia did it anyway, in his dissent in Obergefell v. Hodges, the 2015 gay-marriage case. But Garner also shows us another Scalia, at times even kinder than the gentle mentor in The Originalist, the recent play by John Strand about Scalia’s relationship with his law clerks, and in settings as removed from the law as Scalia ever got. The Justice is nearly apoplectic when a bracelet he bought for his wife might have been damaged after the briefcase it was in falls, and he panics when he thinks he lost a cap Garner’s wife had lent him. He extends all manner of kindness to Garner’s daughter, his wife’s large family, the lawyers and academics he comes into contact with at speaking engagements and presentations. He’s even patient — well, sometimes — with boorish interlopers trying to show him up.
Best of all, Garner ably explains Scalia’s (and his own) principled stance on “originalism,” the view that the Constitution’s meaning (or that of any law, really) can be found only in its original words. But don’t call it “originalism,” Garner advised Scalia, because you’re adopting the lexicography of its enemies; instead use “historicism.” The way Garner explains the doctrine renders it more palatable to skeptics than Scalia’s own sometimes strident judicial opinions. He does this so effectively in part by quoting not from Scalia’s judicial writing but from his speeches and other talks, when the Justice was concerned with connecting with people rather than making law, helping them to understand his — and if I have learned anything from Garner’s book, it is that Scalia would say “the only” — interpretation of the Constitution. As Garner shows us, Scalia was affable and quick-witted in such settings, generous with his time and, afterward, his autograph.
Although the tone of Nino and Me is generally fawning — not surprising given the author’s and his subject’s close friendship — Garner doesn’t omit from his story Scalia’s occasional fits of pique. We hear of the time Scalia yelled at Garner for “wast[ing] an hour” of his life after he had to endure a talkative guest at Garner’s home. He dictated how his breakfast, “the most important meal of the day,” had to be prepared (he liked his eggs “snotty,” he said, by which he apparently meant runny), standing between Garner and his wife as they cooked and barking instructions. He refused to leave his room when his suits became wrinkled after he followed Garner’s advice to put his garment bag inside a suitcase. And he “seethed with anger” — Scalia’s words to Garner — when Garner made his suggestion about avoiding the word “originalism.”
One explanation for Scalia’s quick temper when he didn’t like something might be that he was accustomed to having things his way. Garner opens a window into just how pampered the Justices are, ferried about by US Marshals, who coordinate their charges’ day to the minute and eliminate or handle potential annoyances, from airport security lines to restaurant reservations. Garner even teased Scalia about his being “mollycoddled,” and the Justice objected that he wasn’t as bad as Chief Justice Warren Burger, who he says was led around by the Marshals, “unaware of everything that wasn’t three feet in front of him.” Gossip it may be, but such stories help make Nino and Me a rollicking good read. (Oddly, given his observation about the mollycoddling, Garner expresses outrage at the audacity of a speaking-engagement coordinator who dared to question why the Justice had to fly first class and be put up in a hotel suite rather than just a room.)
As one might imagine, the book is punctiliously written. The prose, often presented in what Garner says are verbatim or nearly so direct quotations, flows easily, full of the contractions Scalia hated and with all citations in footnotes, of course, something else on which he and the Justice could never agree. Some of the best parts of the book recount their good-natured ribbing of each other about these and other tenets of legal writing on which they were at loggerheads. They even worked into their joint appearances mini-debates on their points of friction on writing and advocacy and then polled the audience to see who had “won.” And to think that these stylistic disagreements apparently almost killed their writing partnership early on, until a friend of Garner’s suggested they simply “debate” the disagreements “in the book itself.” Garner relates that Scalia loved the idea as long as Garner’s positions would come first, so that the Justice could “write a dissenting opinion.”
Surprisingly, Garner’s usually misguided relegation of citations to footnotes works well here, perhaps because in a folksy book like this they are not nearly as important as in a persuasive legal brief or judicial opinion. But other of his legal-writing prescriptions don’t translate so seamlessly to a memoir. Yes, subheadings are essential in legal writing (see Principle 40 of Making Your Case) because legal readers would usually rather be doing something, anything, else, and as a judge observes in one of Garner’s taped interviews, if you don’t regularly remind them of your point they’ll start thinking about what they want for dinner or the snowboarding vacation they’ve got planned. But does a 17-page chapter on Garner’s wedding, which Scalia graciously performed after the Rhode Island legislature passed a special bill to allow a nonresident judge to preside, really need subheadings on “The Wedding Rehearsal,” “Wedding Photos,” and “The Ceremony,” among four others? Nino and Me is anything but boring and doesn’t require the signposts so critical in legal writing. Garner would have done well to follow his own advice from Making Your Case: “Excessive subdivision clutters more than clarifies.”
But these are quibbles. Without a doubt Nino and Me humanizes Justice Scalia, offering readers a rare glimpse at the man beneath the robe (sometimes literally). Scalia clearly had great affection for Garner, and for life itself, and Garner’s loving account of their time together leaves us with a softer, more sympathetic — yes, better — impression of the man and his doctrine.
Jean Rosenbluth is a US Magistrate Judge sitting in Los Angeles, before which she was a Clinical Professor of Law at USC Law School and a journalist.
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