What It’s Like to Write with U.S. Supreme Court Justice Antonin Scalia

Episode Notes

Transcript

State Bar of Texas Podcast

What It’s Like to Write with U.S. Supreme Court Justice Antonin Scalia

06/20/2018

[Music]

Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host Rocky Dhir.

[Music]

Rocky Dhir: Hello and welcome to the State Bar of Texas Podcast, this is your host Rocky Dhir.

You really can’t believe where I am today. It’s a really cool room.

All right, so State Bar of Texas brings you a lot of stuff and sometimes we bring you some really cool places. So, I’m sitting in this room, it’s about two-storeys high, filled with books. No, it’s not a Barnes & Noble, it’s not any place you’ve ever been to. This is actually the library of Texas’ own Bryan Garner. He is our guest today. So, we are going to get to talk to Bryan.

Now, if you’ve never heard the name Bryan Garner, then — well, you’re missing out. So, Bryan is the editor-in-chief of Black’s Law Dictionary; has been for many, many years. He’s written numerous books on legal writing, on the proper usage of writing, and I’m having to choose my words very carefully because he is sitting across from me, and I know he’s going to catch me if I do something that’s grammatically incorrect.

Bryan A. Garner: I’m taking notes.

Rocky Dhir: And the notes are all in his head. There’s like no pen, no pad, nothing. He’s noting all this. So next time he sees me, he’d be like, “Do you remember that syntax error you made?” And I’m going to say, “Well, first, hang on, let me look up what syntax means.”

But, Bryan, thank you for being with us today.

Bryan A. Garner: Glad to be here.

Rocky Dhir: So, you’ve been busy, you’ve been writing books.

Bryan A. Garner: Yeah, it seems as if once I started writing my first book, I’ve just never let up. I started the first book, my first week in law school. I decided — I was interested in legal language. I just finished writing a great deal about Shakespearean language, and I had flirted with getting a PhD in English, and working on Shakespearean linguistics and lexicography, that is dictionary writing. But ultimately, I stuck to my plan to go to law school, and of course, went to the University of Texas, where I —

Rocky Dhir: Of course, is there any other school?

Bryan A. Garner: Well, there are a lot of people in the Texas Bar who think so and they’re right. There are a lot of other really good schools, but I was delighted to become a double longhorn. But my first week in law school, I named and began writing a dictionary of modern legal usage.

Rocky Dhir: What made you do that? I mean, my first year in law school, I was trying to figure out where the Taco Bell was, and you’re writing a dictionary in Modern English Usage. Where did that come from?

Bryan A. Garner: I had just been steeped in dictionaries from the time I was about 15 and had fallen in love with dictionaries. And then, when I’ve realized — I thought that the treatment of legal language was largely inadequate. I didn’t like Black’s Law Dictionary much. I didn’t like any of the other linguistic resources I was looking at. So, I decided to write a book modeled on Fowler’s Modern English Usage, but for lawyers. And I kept it a secret because I certainly didn’t want to let it out that I was doing this because it seemed like a very audacious plan for a first year law student. And I did actually keep it a secret from my classmates, but I kept note cards in my pocket, and that’s where I kept my linguistic notes.

So, like everybody else, I kept my class notes on a regular legal tablet. And then I would whip out these cards to make linguistic notes on pronunciations. I had a first year professor, for example, who didn’t know how to say — I’m trying to remember what the word is, it’s not restitution. How could I blank out on this? It’s not rescission. He did misspell “rescission”. He is a contracts professor.

Rocky Dhir: Did you call him on it? Did you say, sir —

Bryan A. Garner: No, no, no. I just made notes of it. But there was one — oh, diminution.

Rocky Dhir: Oh.

Bryan A. Garner: Diminution.

Rocky Dhir: Okay.

Bryan A. Garner: He would always say dimunition.

Rocky Dhir: I’ve heard that before.

Bryan A. Garner: It drove me crazy. And I was convinced I had — and he was a visiting professor by the way at Texas.

Rocky Dhir: And you wanted him not to come back because he was mispronouncing.

Bryan A. Garner: Well, I thought he was kind of semi-literate. But, he was also a very good contracts professor. He didn’t end up getting a job at Texas. But I would whip out these notes and I would take down notes on various pronunciations where professors disagreed on how to pronounce words. Then we’re reading these cases and I’m taking down a lot of linguistic notes. I still have all those note cards.

Rocky Dhir: And did anybody ever ask you that, hey, Bryan or Garner, whatever they called you back then, did they — what are you doing? What’s with these note cards?

(00:05:02)

Bryan A. Garner: Well, yes. There was — you know how extremely neurotic first year law students could be, and they thought maybe Garner has an edge on note-taking and rumors started about what are these cards in Garner’s pocket, and finally a guy named Mike Snipes came up and grabbed —

Rocky Dhir: He is a judge now here in Dallas.

Bryan A. Garner: He’s a judge in Dallas, yes.

Rocky Dhir: So, Judge Snipes if you’re listening.

Bryan A. Garner: Snipes came up and grabbed them out of my pocket. And the one on top said, “pursuant to” with a quotation of the sentence using pursuant to. And he said, what in the world is this? And then, he started waving it around, telling all the other people in class.

And I was myth about this at first. I mean, this was — by now we’re in the second semester before this happened. And then, Snipes and my other classmates became some of my greatest allies, and everyday they were supplying me with fascinating little quotations to put into my usage book.

Rocky Dhir: So, you’ve forgiven Snipes since then?

Bryan A. Garner: Absolutely.

Rocky Dhir: Okay, good, good. Well, then all is good. I was afraid we’re going to have to bring Judge Snipes in to provide a rebuttal.

Bryan A. Garner: We’re good friends.

Rocky Dhir: Oh, good, good. He’s a great guy. So, let’s talk for a second then about who Bryan Garner is. Now, we know you’re a lawyer. We know you’re a legal writer. Do you see yourself more as a lawyer or are you more a lexicographer at heart?

Bryan A. Garner: Well, I think I’m both. But, if you are a taxi driver, when a taxi driver used to say, what do you do? I, early on in my career made a mistake of saying, I’m a lawyer. And then, I would get 30 minutes of the driver’s problems and wanting opinion on things. And having to explain, no, I can’t —

Rocky Dhir: I don’t do that area of law.

Bryan A. Garner: I can’t give you advice on this and there is no attorney-client relationship and so on. So, I learned about three years in, maybe I’m a slow learner or maybe I wasn’t taking as many taxis in those days as I do now. But since about 1988, when people have said — when taxi drivers or Uber drivers say, “What do you do?” I say, “I’m a lexicographer.”

Rocky Dhir: What’s the reaction? What do you get from them?

Bryan A. Garner: Either silence or I will then offer, do you have any dictionary problems, I will be happy to address them.

Rocky Dhir: Now, what do you think of the move of dictionaries from actual books to going online? I mean, now, people go, they look up words, or your smartphone, probably has a dictionary app on there. Do you think that’s — is that a good thing because it’s more accessible or is it a bad thing because it takes something away from the process?

Bryan A. Garner: I think it’s a good thing. My big usage book today is ‘Garner’s Modern English Usage’, there’s an app for that, and there’s an app for Black’s Law Dictionary, 10th Edition; and, I think it’s very handy. When I’m on the plane and somebody has a problem relating to some term, the other day, I was sitting on a runway and somebody had a problem about aid and abet, and I was able to send them a screenshot immediately of the Black’s Law Dictionary entry on the subject.

Rocky Dhir: So, you were one of those people that was actually able to help out on a plane. When they say, is there a doctor? You were like, no, but I’m a lexicographer and I could tell you about aid and abet.

Bryan A. Garner: That’s right.

Rocky Dhir: That’s awesome.

Bryan A. Garner: No, it was not somebody on the plane who needed the help, it was a colleague.

Rocky Dhir: Okay, well, it’s still a cool story though.

Bryan A. Garner: Yeah.

Rocky Dhir: It’s still a cool story So, Bryan, we’re going to talk about something very important here, and I hope I’m pronouncing this correctly. But you’re not a word nerd, you’re a snoot.

Bryan A. Garner: Snoot.

Rocky Dhir: Is it a snoot?

Bryan A. Garner: Snoot.

Rocky Dhir: Snoot. That’s how I was going to say it at first and then I thought I was going to say it wrong and you’d make fun of me. But, no —

Bryan A. Garner: There is a dieresis over the U.

Rocky Dhir: And so that makes it.

Bryan A. Garner: In the pronunciation for snoot. But snoot is S-N-O-O-T.

Rocky Dhir: Right.

Bryan A. Garner: It’s a David Foster Wallace term. Are you a fan of David Foster Wallace?

Rocky Dhir: Well, I’ve admired some of his work, although I don’t think I — I don’t think I have quite the familiarity that you do. But this is a very fascinating piece and we’re going to talk about where this comes from. But there’s a definition for snoot.

Bryan A. Garner: Right.

Rocky Dhir: Right here in this book that I’m holding.

Bryan A. Garner: In ‘Nino and Me’.

Rocky Dhir: That’s right. We’re going to talk about that first. Would you mind indulging me for a second? Could you read out the definition of snoot?

Bryan A. Garner: Sure.

Rocky Dhir: I’ve got it right here, then we are going to talk about where it comes from.

Bryan A. Garner: Snoot, noun (2001) [Acronym for either syntax nudnik (or nerd) of our time or Sprachgefühl necessitates our ongoing tendance]. So that’s the etymology. Then the definition. A person who cares intensely about words, usage, and grammar, and who adheres to a kind of enlightened prescriptivism that assesses language for its aptness, clarity, succinctness, and power.

(00:09:57)

Then there’s what’s called after the bullet stuff, which I call it ABS, after the bullet stuff. That’s encyclopeding information for a dictionary entry and you see them throughout Black’s Law Dictionary.

The term was first used in print in the April 2001 issue of Harper’s Magazine in an essay entitled “Tense Present” by David Foster Wallace, who described it as familial jargon with more-positive connotations than the dysphemisms grammar Nazi, usage nerd, syntax snob, and language police. Snoot, yeah.

Rocky Dhir: I noticed in this definition, there is no mention of the word “geek”. It’s either — it’s just nerd.

Bryan A. Garner: I guess grammar geek, do people say grammar geek?

Rocky Dhir: I think they should.

Bryan A. Garner: Yeah, at least it’s got the alliteration.

Rocky Dhir: Exactly, and plus, I think there’s a difference between a nerd and a geek. You know, the geek is somebody who’s cool. There’s an inherent coolness to being a geek. Sort of like the computer programmers. So, we need grammar geeks. What do you think?

Bryan A. Garner: I think it’s good.

Rocky Dhir: That’s right here.

Bryan A. Garner: Haven’t thought of it. I didn’t — geek was not a word that was used much when I was a kid. So, I’ve always thought of geek as kind of new fangled but it does have more positive connotations than nerd, I think.

Rocky Dhir: So, here we go, The State Bar of Texas Podcast, where we just invented the term “grammar geek”.

Bryan A. Garner: It’s the other name of snoot.

Rocky Dhir: There we go. I love this. See, this is new material, right? This is innovation. This is legal innovation right here in your ears, right? So, let’s talk for a second about where we find this definition. And let’s talk about David Foster Wallace and everything that went into the making of this book. I have got a book in my hand that, Bryan, you just got published a couple of months ago.

Bryan A. Garner: Right.

Rocky Dhir: January of 2018, ‘Nino and Me’. This is about your friendship with Justice Scalia. So, first of all, Nino, that was his nickname?

Bryan A. Garner: It was, yeah. It marked a major transition in our relationship when he went from being Justice Scalia to insisting that I call him Nino.

Rocky Dhir: Talk about that for a second. When did that happen?

Bryan A. Garner: It happened in June 2007 and it was at his house. He had — our literary collaboration got off to a bit of a rocky start. We had a misunderstanding early on. He said he wanted out. There was — he accused me of trying to capitalize on his name and not used what he had written for our book. So, we had this kind of tumultuous early relationship.

But then, when he understood that he just hadn’t opened the relevant computer file, because he didn’t — I came to understand he didn’t open the attachment. So, I had to fax him things instead of sending him a computer attachment because he wouldn’t open attachments.

Rocky Dhir: And that’s where the misunderstanding died —

Bryan A. Garner: That’s right. Yeah. But the accusations were pretty severe on his part, in a telephone conversation and I recount that.

So, early on, I didn’t know Justice Scalia at all well. I certainly didn’t know how much I would come to love the man and what kind of close relationship we would have. But, after we mended that problem, some few months later, we were at his house and having dinner, my daughter Caroline and I, and he and Mrs. Scalia, and he called me aside, he was mixing a drink and he said, Bryan, there’s something I’ve been meaning to tell you. And I said, what’s that? He said, I don’t think we can continue working together. And my heart sank, I thought, this is horrible, and then he added, if you continue calling me Justice Scalia, I’m Nino to you.

Rocky Dhir: Was it weird or odd to call him Nino after that point? Did it feel natural or did it feel — did it take some getting used to on your part?

Bryan A. Garner: It was surprisingly easy. I don’t know why that was. I remember when Charles Alan Wright, with whom I had a similar close friendship, when Professor Wright went from Professor Wright to Charlie, that was actually a very difficult —

Rocky Dhir: More so than Nino?

Bryan A. Garner: Yeah, I think because he’d been a professor at UT Law. I’d never had a class with Charles Alan Wright. He was a thoroughly intimidating man, and little did I know that we would develop this close friendship as a result of the first usage book. My first book came out and Professor Wright became a big fan of it. But he became Charlie after about eight months of daily correspondence, before we actually met. And so, that was a difficult one, maybe Charlie, in lots of ways made me feel comfortable about having a friendship with a revered exalted person, much — many years my elder.

(00:15:01)

Justice Scalia is 22 years older, but we traveled the world together; we gave presentations together. I think twice for the State Bar, for the State Bar Annual Meeting here in Dallas back in 2009. And he was just a great co-author, somebody to share the stage with, and present with, and write with.

So, anyway, calling him Nino seemed oddly natural but it reminded me of the moment that Professor Wright became Charlie.

Rocky Dhir: Now, in your — the very cover of your book you say, my unusual friendship with Justice Antonin Scalia. You used the word “unusual”, not unexpected, not — you’re a snoot when it comes to words. You know words very well. You chose the word “unusual”. Why that word? What was unusual about that friendship?

Bryan A. Garner: Well, there were many impediments to the friendship; one of which is geographic, another was the age difference. It’s rather unusual for two people to bond so tightly over an interest in language. I guess, it’s a little unusual, on the other hand, that’s how I bonded with David Foster Wallace, and also with Charles Alan Wright.

So, people who care a lot about language can pretty readily bond with each other over that. I have found over the course of my life and that’s been the genesis of several close friendships, but it was with Justice Scalia.

On the other hand, there were serious impediments. I’ve met the man twice when I suggested that we collaborate on a book. That was kind of unusual and that he would accept. Well, there were people in his life who were very suspicious of me I think. I didn’t realize it at that time.

Rocky Dhir: Suspicious in what way? Do you know?

Bryan A. Garner: All law professors who were very close to him wondering why are you writing books with Garner and not me, and if you are going to — I’ve known you for decades. If you’re going to write a book with somebody, why don’t you write with me? So, that was going on.

I think some of his close friends who were very devout were very suspicious of having him collaborate with an unbeliever. And — now, that’s getting kind of personal, but it’s true. And then, I think, the New Yorkers in his life and some of the Washingtonians were saying — they’re suspicious of this interloping Texan.

Rocky Dhir: He is a Texan.

Bryan A. Garner: That’s right. So, when anybody ascends to the kind of eminence that Justice Scalia had, there are all sorts of protective layers that it was surprising to him I think and surprising to me. Not only that we enjoyed writing books so much together, but we came to love each other.

Rocky Dhir: Was there a turning point? So, you’ve described for us how you went from Justice Scalia to Nino. But was there a point at which he went from Nino, your collaborator on the book, to becoming this dear close personal friend about whom you could obviously write many hundreds of pages, was there a moment when that transition occurred?

Bryan A. Garner: No, I can’t pinpoint. One of the things about the book, and the book is about literary collaboration, it’s also about friendship. There’s so many accidents that must occur for the formation of a friendship. And ours had more impediments than probably most would have just in its very development. But, you see the progress of how unlikely the whole alliance was from our beginning to be concerned for each other. I mean, he stood by me and helped me in various ways.

I suffered a bad injury on my left arm and was crippled for two years. He was so concerned, and he wanted me to have surgery, and I wasn’t sure about it. But he found the very best surgeon at Johns Hopkins, one of only four people in the world who could perform this operation. And the fact that I can lift my left hand and grasp things with it is kind of a miracle. But, I owe that to him to a great degree.

Rocky Dhir: He saved your life as you knew it at that time or before the accident in some ways.

(00:20:01)

Bryan A. Garner: And he made a new life for me, I mean, just writing those books, which was an exhilarating experience for us both, and I recount in ‘Nino and Me’ how we wrote the books together and the arguments that we would have in chambers.

Rocky Dhir: Contractions?

Bryan A. Garner: This passage and that passage and difficulties. I mean, there were a lot of difficulties, because we are both strong-willed, I think impatient and tenacious people, so we did have struggles, but the way he would explain it to audience is he would say you know, 80% of the time when Garner and I disagreed, I would go his way and then he would add to the audiences, you know me, Nino Scalia, go along to get along; and people loved that.

Rocky Dhir: And so he called himself Nino in front of the audiences too?

Bryan A. Garner: Occasionally, yeah, everybody close to him, his family. Well, I mean his I guess extended family. The clerks would always call him — his former clerks would always call him Justice Scalia and everybody in chambers would call him Justice. His assistants would call him Justice. It’s almost like a first name.

So when we were on our last trip together in Hong Kong, we had a tour guide.

Rocky Dhir: That’s 2016, right?

Bryan A. Garner: That’s right, giving us a walking tour of Hong Kong and he insisted on calling everybody by his first name. He was almost like a Monty Python character. Like a Michael Palin sort of Monty Python character.

Rocky Dhir: You are talking about the tour guide?

Bryan A. Garner: Yeah, he was a bumbling fool really, and he wanted me to be Bryan, Caroline, and Tom, and I said this is Justice Scalia. He said, yes, but what’s the first name? And I said, his first name is Justice.

Rocky Dhir: Did he call him Justice?

Bryan A. Garner: He called him Justice.

Rocky Dhir: Oh, good, okay. So at least he didn’t push any — he didn’t push that button any further than he had to, so he said Justice.

Bryan A. Garner: But he had no idea. I mean he said, oh, well, I had a judge last week. I am accustomed to having judges. I had a New Zealand trial judge that I took on a tour last week, as if this was some big honor. He had no idea who he was dealing with in Justice Scalia.

Rocky Dhir: That had to have been kind of refreshing though for Justice Scalia to be someplace where he is just a normal person. People aren’t tripping over themselves to go meet him.

Bryan A. Garner: I think he liked that, yeah, he liked that.

And I think one of the things he liked about our friendship is I was probably one of the few people in his life not wanting to talk about cases. We never talked about cases.

I mean he would say oh, earlier today we handed down a decision that did so and so and he would explain it to me and what his position was. But mostly, we would discuss legal concepts, we would discuss legal interpretation, we would discuss cases that I would bring to him, but we wouldn’t discuss the docket of the Supreme Court or what was happening up there.

I think that’s what a lot of people in his life were trying to — it would dominate the conversations and so I think he liked the idea of discussing language and jurisprudence and things like that, but not talking about the current cases.

Rocky Dhir: So would he talk language and jurisprudence even with family members or was that something mainly for other lawyers, folks like you?

Bryan A. Garner: You know, I never actually saw him interact with his family, except Mrs. Scalia. We would go out for dinner, Caroline and I would go with Justice Scalia and Mrs. Scalia and we enjoyed our dinners of four, but I never really got to know any of the rest of the family.

Rocky Dhir: So when you were at these dinners of four, because there’s four of you there, two of you, avid scholars of English and of the legal usage of the English language, is that what you would mostly talk about, or would there be other topics since there is two couples and I know Caroline is — she is a lawyer as well, right?

Bryan A. Garner: Yeah.

Rocky Dhir: Is Mrs. Scalia a lawyer?

Bryan A. Garner: No, but they had interest in common, from etiquette, to we would talk about Murray’s. I mean we liked —

Rocky Dhir: Really?

Bryan A. Garner: Discussing — yes, the state of social behavior, we did.

Rocky Dhir: At dinnertime, you guys would talk about social behavior?

Bryan A. Garner: Sure, sure. Look at that guy over there, he has got a hat on in this restaurant. And I can’t tell you how many times we had to change tables because a man in the restaurant would be wearing a hat in Justice Scalia’s vision, and it bothered me too.

(00:24:49)

We were very like-minded about stuff like that. I blame my mother and I blame my grandmothers for that, because they burdened me with the enviable idea that it is grossly boorish behavior for a man to wear a hat inside, and I wish I didn’t have this strong conviction that was inculcated into me when I was a very small child, but it was and —

Rocky Dhir: And so did Justice Scalia.

Bryan A. Garner: Oh yeah, he felt very strongly about that and the decay of just social norms generally.

Rocky Dhir: What are some other social norms that —

Bryan A. Garner: Well, a lot of them are linguistic. I mean, we would talk about what’s going on linguistically, but in a way there are some people who try to say that English usage is a matter of manners. Why does it matter that you use one form of a word — why does it really matter that you say presumptuous, not presumptuous. T-I-O-U-S, it’s presumptuous, so why should that matter? And the answer is really that it’s just a matter of convention and it’s settled literary convention, but there are many people who couldn’t care less and the people who couldn’t care less are likely to say they could care less.

Rocky Dhir: Right, I was going to say that. That’s a common misuse of — so let’s talk about the contractions, you and Justice Scalia oftentimes — I think that was one of your most famous differences of opinion was the use of contractions in legal briefs.

Bryan A. Garner: In our first book, ‘Making Your Case’, we had four debates and contractions was really the first subject that we debated. And I have to say, having these debates, we couldn’t figure out what to do in the book about the points we disagreed on because he wasn’t budging and I wasn’t budging and ultimately we decided we would just abandon our joint voice, which we had throughout ‘Making Your Case’ and we would have — he said, Bryan, you write the majority opinion, I am going to write the dissent.

Rocky Dhir: The dissent.

Bryan A. Garner: That’s right. And he loved that. I mean he loved debating me, but on the other hand, he was a very congenial co-author and, as he liked to point out to audiences, he went my way. So the first book is full of contractions, even though he was absolutely dead set against them.

Rocky Dhir: Why was he dead set against them?

Bryan A. Garner: He said, you know, Garner likes contractions, and by the way, may I just point out that today five of the US Supreme Court justices do use contractions, including the chief, but always in separate opinions. So there is one justice, I am pretty sure it’s Justice Kennedy, who is still dead set against contractions, so they are not used in majority opinions. But I suspect that they will come to be used in majority opinions at some point. Probably it depends on Kennedy’s replacement, I kind of suspect, whenever that happens. I don’t know when he might retire or if he will retire.

But Justice Scalia and Justice Kennedy I think agreed on contractions. They thought it was similar to wearing Bermuda shorts into an oral argument. I mean that’s Justice Scalia’s comparison.

My point is that all the best nonfiction writing of our day, whether it’s in Harper’s or The New Yorker, or The Economist, or The Atlantic Monthly, is full of contractions and if you would naturally say it is a contraction, it reads a lot better that way and the writing has more power.

Chief Justice Nathan Hecht uses contractions. Justice Gorsuch as a Tenth Circuit Judge would use double contractions, that is he would use the contraction shouldn’t’ve and couldn’t’ve and wouldn’t’ve; one word with two apostrophes.

Rocky Dhir: Justice Scalia would have gone crazy with that. I mean he would be like, wait, two contractions in one word?

Bryan A. Garner: There’s a passage in ‘Nino and Me’ in which he reacts to my sending him an email about this Tenth Circuit Judge Gorsuch.

Rocky Dhir: Now, this brings up an interesting question, that when it comes to the usage of the English language, especially written usage of the English language, especially legal written usage of the English language, do you think — and please, if think you know what Justice Scalia might have said about this, is it more important for us to adhere to norms and traditional rules or do we need to break conventions and try to look for new usages of these old rules of construction?

So, for example, with the contractions, there was a time when lawyers would have balked at the idea of using a contraction in the legal brief, but now there is some give to that. As lawyers, should we be trying to push that boundary or do we try to play a more conservative role in our legal writing?

(00:29:59)

Bryan A. Garner: Well, I think of myself as a traditionalist. I am a traditionalist. I believe in literary congruity, but contractions have been with us for a long time, and in a way one great thing about them in legal writing is that they combat stuffiness. And one thing that you have throughout a lot of legal writing is very stuffy artificial tone. If you are trying to get to a real human voice, a genuine human voice, contractions help you do that and that’s why the best nonfiction writers of our day use them.

On the other hand, when it comes to grammarians, and you know some of the books that I write are books on English grammar, I am about as conservative a grammarian as you will find in print today, and I like good traditional uses of literary language.

So I don’t think people ought to be searching for new usages. The English language is this wonderfully supple and variegated tool that we have and people need to learn how to use it really well.

I also think law is the highest calling that you can have, where our only tool is words; that’s all we have is words. So lawyers ought to be really good at using the language well.

It seems to me any self-respecting lawyer should be ashamed if anybody else in the lawyer’s family knows more about punctuation or pronunciation or the word you brought up earlier, English syntax.

But let me take a moment, some people think the old rules about language are things like don’t end a sentence with a preposition. That is false. It’s always been false and no serious grammarian has ever taken that position. Or don’t split an infinitive or you can’t begin a sentence with and or but. Well, these are non-rules; those are not really — they have never been rules of English grammar.

Rocky Dhir: But our English teachers in grade school.

Bryan A. Garner: That’s true.

Rocky Dhir: Put those rules in our head.

Bryan A. Garner: That’s true, isn’t it? And your third grade teacher lied to you. In her defense, she was trying to cope with a little problem that — so all of us in third grade want to begin every sentence with and. And so, third grade teachers simply say, don’t do that.

Now, what they can’t do, because third graders can’t follow this kind of instruction, they will not say don’t begin a sentence with and or but for now but later, if you are going to be a professional writer and a published author, you will want 10-20% of your sentences beginning that way. Third graders can’t follow that, so they just say don’t.

Rocky Dhir: Do you think Justice Scalia would agree with what you said?

Bryan A. Garner: Absolutely. I mean we wrote about it in ‘Making Your Case’. And one of the reasons that we agreed that our literary styles melded so seamlessly was precisely that we had the same kind of style of beginning sentences with and and but. I mean that’s partly what made him such a brilliant writer.

People don’t focus on that much, but that’s how you connect sentences very smoothly. And you can overdo it. Again, what you will find in first grade prose is usually 10-20%.

Rocky Dhir: 10-20% usage of and or but.

Bryan A. Garner: Sentences beginning with and, but, so, yet, or, and nor; in other words, conjunctions.

Rocky Dhir: Got it, okay. Now, as we are nearing the end of our time together, I can’t believe it, I mean how is this coming to an end so soon, time flies when you are having fun and you are talking about grammar and you are inventing terms like grammar geek.

Bryan A. Garner: Well, now I wish I hadn’t given you this arbitrary deadline.

Rocky Dhir: Well, that goes back to my earlier question.

Bryan A. Garner: It doesn’t mean I am budging from it.

Rocky Dhir: I was going to say rules were meant to be broken.

Bryan A. Garner: You better get on with the interview.

Rocky Dhir: I am trying. You are stalling me over here. So before we wrap up, I wanted to give you a chance to maybe talk a bit about what you think — looking back, what do you think Justice Scalia’s legacy will be? How will history remember him?

Bryan A. Garner: Well, I do think he is the most misunderstood judge in modern times and probably one of the most misunderstood people in public life. His great legacy is going to be textualism.

As Justice Kagan has said, we are all textualists now. All serious judges — I say that, it’s not actually true, I mean until recently Judge Posner of course was on the bench and he said he is anything but a textualist and he is a consequentialist.

But there are three approaches to statutory interpretation or the interpretation of any kind of legal instrument, contract, will, whatever it might be. The three major approaches are textualism, meaning we pay very close attention to the words, the syntax and we look at dictionaries because we want to know what the ordinary meaning of words is. So textualists are very close analysts of words, grammar, syntax.

(00:35:15)

Rocky Dhir: Is it strict interpretationist? That’s different, okay.

Bryan A. Garner: No, no, no. It’s a fair reading. So Justice Scalia would disclaim being a street constructionist. Strict has traditionally meant in legal circles narrowed, a very narrow construction.

Anyway, he was the quintessential textualist. A very small part of textualism is originalism, which simply means we also want to know what the words meant at the time of enactment. Now, that’s pretty uncontroversial except when it comes to constitutional interpretation. Anyway, textualism is one approach.

The second is purposivism. And a purposivist says, don’t tell me too much about what the words are and the syntax and grammar. What was Congress trying to do when they enacted this statute, broadly speaking, what were they trying to do? And purposivism allows judges to go around or behind the words of a legal instrument to get a desired result that they think Congress would have wanted or whoever the drafters were.

The third approach is consequentialism, and the consequentialist is not looking back to what Congress intended, but looking forward to what is the best result I can reach, regardless of the word. It’s like don’t talk to me about words and grammar and syntax; I want to know what is the best result, what is the best clause I can put on the law despite what the words say. So that’s consequentialism.

There are actually very few judges who will openly say they are a consequentialist. There are more judges; Justice Breyer is probably our quintessential purposivist today. But I think Scalia’s great legacy is that textualism has made great advances, that judges everywhere, of any political background tend to pay very close heed to the words, and it’s a great legacy to have.

Rocky Dhir: It is indeed. Well, you know, Bryan, I think we are going to have to continue this discussion on another podcast episode. Would you be open to that?

Bryan A. Garner: Absolutely. I hope we can.

Rocky Dhir: Oh, I think it would be great and we can delve further into objectivists, purposivists, and consequentialists, this sounds fascinating. So we are going to call this a to be continued. We are not going to call this the end of our talk with Bryan Garner; we are going to do this again.

So ladies and gentlemen, what an amazing session. Thank you Bryan for being here. And don’t forget to pick up your copy of ‘Nino and Me’ by Bryan Garner. It’s, as he says, ‘My Unusual Friendship with Justice Antonin Scalia’. It’s kind of getting behind the veneer and getting to know one of our revered justices in a way that only a very close friend can.

So thank you for listening to the State Bar of Texas Podcast today. If you liked what you heard today, you can find us at the legaltalknetwork.com. Also, please remember to rate us in Apple Podcasts and/or follow us on Twitter or Facebook.

Bryan A. Garner: Rocky, I would give you a very high rating for what you have just done. It’s very good.

Rocky Dhir: Thank you.

Bryan A. Garner: It was much better than your colleagues were letting on it might be.

Rocky Dhir: I think maybe you talked to my wife; that might be where you got the one star rating.

Bryan, thank you again.

Bryan A. Garner: Thank you.

Rocky Dhir: And thank you for listening. We will see you next time on the State Bar of Texas Podcast.

[Music]

Outro: If you would like more information about today’s show, please visit legaltalknetwork.com. Go to texasbar.com/podcast. Subscribe via Apple Podcasts and RSS. Find both the State Bar of Texas and Legal Talk Network on Twitter, Facebook, and LinkedIn or download the free app from Legal Talk Network in Google Play and iTunes.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by the State Bar of Texas, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]