ALEX CHADWICK, host:
Justice Antonin Scalia is the Supreme Court's best-known advocate of conservative legal philosophy. His new book, though, is less philosophical, more practical. It's a guide to writing and arguing cases. Coauthored with editor Bryan Garner, the title is "Making Your Case: The Art of Persuading Judges." NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Antonin Scalia is known as perhaps the most readable and often the most incendiary writer on the Supreme Court. His language, especially in dissent, is vivid, quotable, and unsparing, but it also concise, to the point, and grammatically unassailable. In this short volume, Scalia and coauthor Bryan Garner seek to instruct lawyers on how best to make their arguments in their legal briefs and their oral presentations. Some lessons are about more than writing. They are about behavior before the court. Take this piece of advice. Some people are inherently likeable. If you're not, work on it. It may even improve your social life. Most non-lawyers, says Scalia, focus only on results, not on how a judge reasons.
Justice ANTONIN SCALIA (U.S. Supreme Court): Most people just do what the audience does in "The Merchant of Venice." They just look at the result of the case, and if they like the result, they say, you know, brilliant judge. And, if they hate the result, they say, what a, you know, screwball of a judge. I use "The Merchant of Venice" as an example because Portia's legal reasoning in that case was terrible. She would get a D in any law school. Portia happened to be happened right for the wrong reason.
TOTENBERG: Reasoning, he argues in his book, is in part, at least, made from presentation. The way arguments are marshaled. Indeed, Scalia and coauthor Garner had their own disagreements, not on substance, but on writing style. Scalia accuses Garner of feminizing the language.
Justice SCALIA: I use he the way English writers have always used he.
Mr. BRYAN GARNER (Coauthor, "Making Your Case: The Art of Persuading Judges"): Well, you use he...
Justice SCALIA: And no offense meant, it means both he and she where the antecedent is not masculine.
TOTENBERG: Garner had a different view.
Mr. GARNER: I call it just not offending a third of your readership.
TOTENBERG: In the end, Scalia agreed to, as he puts it, neutering his language. He says Justice Ruth Bader Ginsberg does the same thing to his opinions, neuters the gender.
(Soundbite of laughter)
Justice SCALIA: And, you know, she's a good friend, so, even in dissent, I'll allow her to do that, if that's the price of getting her to join in dissent.
TOTENBERG: How long...
Justice SCALIA: But that doesn't mean I have to like it.
TOTENBERG: Scalia and Garner also disagree about the use of contractions in legal writing. Garner favors them to make the text more conversational.
Mr. GARNER: One great way of combating stuffiness...
TOTENBERG: Scalia says that using contractions is trying to be, in his words, buddy-buddy with the court.
Justice SCALIA: Needless to say, I don't agree with that. Just imagine the Gettysburg Address, right? We can't honor. We can't consecrate. We can't hollow this ground. Come on! We cannot honor. We cannot dedicate. We cannot hollow this ground. It's a matter of formality and ponderousness and seriousness.
TOTENBERG: Garner says that, as he worked on the book with Scalia, with the two men disagreeing even about the rules of indexing, they would spend hours in happy contention about how to proceed. In the beginning, says Garner...
Mr. GARNER: His stuff, I was contracting the do nots and the cannots, and he was uncontracting all my writing.
TOTENBERG: In the end, though, as Scalia pointed out to Garner in our interview...
Justice SCALIA: Tell the truth. Being the accommodating, genial, lovely person that I am, I did it your way, didn't I?
TOTENBERG: Yes, agreed Garner. He did, but with the written protest in the book. Very Scalia. Nina Totenberg, NPR News, Washington.
CHADWICK: Madeleine and I argue out the rest of the day's news just ahead on Day to Day.