The first time Bryan A. Garner, a lawyer and writer, met Antonin Scalia—over breakfast at the Washington, D.C., Four Seasons, in 2006—the Justice spent the early part of their conversation praising a magazine essay he had recently read on English grammar and usage. Garner, who has now written two books with Scalia, felt that it would be bad form to interrupt, but when the Justice had trouble remembering the essay’s author, he suggested a name. Scalia assented. “Sir,” Garner replied, politely, “that essay is a review of my book.”
Garner is the editor-in-chief of “Black’s Law Dictionary,” a contributor to the “Chicago Manual of Style,” founder of the H.W. Fowler Society—which he named for the legendary lexicographer—and author of Oxford’s “Modern American Usage,” recent editions of which have seen his name moved, à la Fowler, into the book’s title; he might be the world’s premier authority on grammar and usage in English. The essay under discussion that morning was “Tense Present,” by David Foster Wallace, which had by then gained a passionate following in certain circles, though few of its readers likely realized that its influence extended to the U.S. Supreme Court.
Justice Scalia had initially proposed the breakfast after declining to sit for a more formal interview on writing and legal advocacy. By the end of their meal, Scalia had changed his mind, and the two have gone on to form a productive and collegial, if unusual, working relationship. The interview, Garner’s first with a sitting Justice, took place the following October, and he has completed others with almost two hundred state and federal judges, and nine of the eleven Justices who have sat on the Court since. “You’re something of a SNOOT yourself,” Scalia told Garner as they ended their interview, invoking Wallace’s pet phrase for a grammar and usage fanatic, “and that makes me happy.” (Other SNOOTs, according to Scalia, include former Justices Harry Blackmun and David Souter. Ruth Bader Ginsburg shares their zealousness, but, Scalia said, she’s “too polite.”)
“Making Your Case: The Art of Persuading Judges,” the first book co-authored by the pair, appeared in 2008. Their second book, “Reading Law: The Interpretation of Legal Texts,” was published by Thomson/West last month. The nearly six-hundred-page tome details Scalia’s judicial philosophy, which they call “textualism.”
“My calculation is we spent about eighty-five to one hundred hours side by side for ‘Making Your Case,’” Garner said. “Probably sixty of those hours, once we had a draft, we actually went through sentence by sentence, together, reading it aloud. We ended up really co-authoring every single sentence of the first book.”
The intensity of their collaboration took an uneven toll on the writers. “In 2008, before we went to press, I suggested that we should do a second book together, on textualism. I wanted to write something that would be a better guide to judges and to lawyers than we had on the market. And, after we finished the book, the first book, Justice Scalia said no way. ‘No way. I’m sick of this. I’m sick of writing. I hate writing,’” Garner said. But he hadn’t just completed a book subtitled “The Art of Persuading Judges” without learning a few tricks. “So I said, ‘Well, all right. I think it needs to be done. And the shame is, now it’ll never be done, because you know more about this subject than anyone else alive.’ He said, you know, ‘Life is short, and I don’t have time for this.’ I said, ‘Well, all right.’ About six months later, I get a phone call from him, and he said, ‘You know, Bryan? I miss you,’” Garner recalled with a laugh. “I said, ‘Well, I miss you, too, Nino. You know, there’s a cure for that. Let’s start the second book.’”
The work was sometimes rough going—“Reading Law” alone took two hundred and sixteen drafts. “Justice Scalia is an intellectual pugilist, throwing some very hard punches,” Garner explained. “But he wanted to see what I had coming back. He’ll work out positions by taking a strong stance and seeing what you have.” Garner, unlike Scalia, identifies as pro-choice and favors legalizing gay marriage. He’s against prayer in public school, favors gun control, and, as he states in “Reading Law,” “deplores the Second Amendment.” In one of their darker moments, the book was almost cancelled—over a dispute about grammatical contractions, like “don’t” and “can’t,” that they had to leave unresolved. (Garner deems them acceptable in legal writing; Scalia, the only child of a professor of Romance languages, finds them “intellectually abominable, but commercially reasonable.”) “And yet,” Garner said, “Justice Scalia and I have not yet found a case that we would decide differently. We begin and end with the words of the text.”
Between books, Garner spends most of his time holding legal-writing seminars for practicing lawyers, travelling more than two hundred nights a year in an effort to break the bad habits of a profession bound tightly to its precedents. “Word for word,” he has said, “lawyers are the most highly paid professional writers in the world. But the literary tradition in the profession is probably the worst.”
One of those seminars, held last month in the ballroom of a Manhattan hotel, drew close to forty lawyers. “Judges are people, too,” Garner implored his students, and “hyphenating well, punctuating correctly, is not below your pay grade.” But the documents he collects from courts and firms, and teaches lawyers across the country how to fix, show him how much work he has left to do. “How can lawyers write this way?” he wondered, mid-lesson, looking at a memo near the end of the day. “It’s as if we’re not even alive to the language!”
When, despite his natural energy, the minutiae of what amounted to a day-long writing and grammar lesson grew tedious, Garner resorted to his dry sense of humor. “I have it on good authority,” he conceded in one peek under the robes, “that when appellants to the U.S. Supreme Court spend eighty per cent of their time looking at Justice Kennedy,” who has gained a reputation as the divided Court’s swing vote, “it’s annoying.” He waited a beat. “To the others.”
Photograph courtesy Bryan A. Garner.