Lessons from the improbable Scalia-Ginsburg friendship

The death of Supreme Court Justice Antonin Scalia in 2016 sent powerful shockwaves through American culture that reverberated deeply on both sides of the political and ideological spectrums. Those shockwaves have been reawakened with the death of Justice Ruth Bader Ginsburg.

Justice Ginsburg died Sept. 18, after having lived an inspired life of public service. It’s tempting for some to reduce Justice Ginsburg and her life to the legal decisions and laws she upheld (or didn’t) during the 27 years she served on the bench of the Supreme Court, but doing so would be a grave disservice to her. Despite one’s consensus of what Justice Ginsburg stood for, she served her country nobly and helped to cement many notable advances for women’s rights and gender equality in our nation’s rule of law.

In a time of truly stark political division within the country, there’s a powerful lesson to be learned on both the right and the left in reflecting on the life of Justice Ginsburg and the deep friendship she shared with the late Justice Scalia.

Scalia and Ginsburg were virtual opposites when it came to their political ideologies. Scalia, a devout Catholic and father of nine children, was about as conservative and “right” as they come. Ginsburg, a fiercely liberal Jewish mother of two and an outspoken advocate of women’s rights, was a steadfast champion of the left. Rarely did they agree on the outcome of landmark Supreme Court cases, and their dissents to one another were not for the faint of heart. It would be contrary to today’s prevailing logic for them to be amicable acquaintances, let alone good friends.

And yet, they were. If Justice Scalia was still alive today, there can be little doubt that he’d kindly and poignantly eulogize his good friend Ruth Bader Ginsburg at her funeral, just as she did for him in 2016.  

While eulogizing her good friend Antonin Scalia on March 1, 2016, Justice Ginsburg shared an “indelible” memory of the late Justice Scalia from Dec. 12, 2000, the day Bush v. Gore was decided. 

“I was in chambers, exhausted after the marathon: review granted Saturday, briefs filed Sunday, oral argument Monday, and opinions completed and released Tuesday,” she recalled. “No surprise, Justice Scalia and I were on opposite sides. 

“The Court did the right thing, he had no doubt. I disagreed and explained why in a dissenting opinion. Around 9 p.m., the telephone, my direct line, rang. It was Justice Scalia. He didn’t say ‘Get over it.’ Instead, he asked, ‘Ruth, why are you still at the Court? Go home and take a hot bath.’ Good advice I promptly followed.” 

In the days following Justice Ginsburg’s death, one of Justice Scalia’s sons, Eugene, wrote a piece for the Washington Post recalling many fond memories of spending New Year’s Eve with his parents and Justice Ginsburg and her husband, Marty. The friendship between the two Justices, Eugene wrote, “was quite simple, as some of the best friendships are.” 

“They worked at the same place,” he continued. “They were both New Yorkers, close in age and liked a lot of the same things: the law, teaching, travel, music and a meal with family and friends.” 

On the other hand, Eugene observed that their differences were “as integral to the justices’ friendship as the similarities. She had made her mark as a pioneering advocate for women’s rights; my father was a traditional Catholic who came to prominence as a critic of activist courts. He respected what she had achieved in an era when the deck was stacked against her; from her experiences, he gained insight and depth of understanding. He liked learning and could learn from her.” 

And amid all of their differences and disagreements, “Not for a moment did one think the other should be condemned or ostracized,” Eugene wrote. “They believed that what they were doing — arriving at their own opinions thoughtfully and advancing them vigorously — was essential to the national good. With less debate, their friendship would have been diminished, and so, they believed, would our democracy.”

Their friendship endured until the end of Justice Scalia’s life. Aside from welcoming differences and engaging in civil and charitable debate, the Scalia-Ginsburg friendship teaches us that as humans, we are all much more than our politics and the ideologies we stand for. Our capacity to love and be loved by our friends transcends the walls of division, perceived or otherwise.

Justice Ginsburg, like a good and true friend, endearingly shared all the things she would miss about her friend during his eulogy, because that’s precisely what they were: friends.

“I will miss the challenges and the laughter he provoked, his pungent, eminently quotable opinions, so clearly stated that his words never slipped from the reader’s grasp, the roses he brought me on my birthday,” she said. 

About those roses: another of Justice Scalia’s sons, Christopher, shared on Twitter an anecdote about his father from United States Judge Jeffrey Sutton, who once asked Justice Scalia: “What good have all those roses done for you? Name one five-four case of any significance where you got Justice Ginsburg’s vote.” 

“Some things,” Justice Scalia gently replied, “are more important than votes.”

COMING UP: After Justice Scalia

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The death of Justice Antonin Scalia on February 13 – unexpected and, for many reasons, tragic – draws a curtain on the life and public service of one of the most important Catholic figures in America over the past half-century. Justice Scalia was regarded, by admirers and detractors alike, as the most consequential jurist of his time. He brought a remarkable intellect, a clear concept of judging, a distinguished literary style, and a biting wit to his work on the U.S. Supreme Court. His utter demolition of the majority opinion in Obergefell vs. Hodges, the decision that invented a constitutional right for people of the same sex to “marry,” is a masterpiece of devastation – as was Scalia’s dissent from Chief Justice John Roberts’ opinion saving Obamacare by reinventing it as a kind-of-tax.

But it would be a grave mistake to think of Justice Scalia’s jurisprudence as essentially negative. Rather, his judging was based on convictions about who should make the laws and how judges should function in a system of judicial review. In a democracy, he believed, legislators, chosen by the people, are free to craft laws within the bounds set by the Constitution. The judge’s task is to interpret both Constitution and statutes according to their text, and according to the text’s meaning as that meaning was understood when the text was adopted. Any other method of judging, he thought, inevitably turned the Supreme Court into a Super-Congress, in which nine unelected lawyers who were not subject to periodic elections ruled the country. That seemed to him a very bad idea. More to the point, it was not the idea of governance inscribed in the Constitution.

Justice Scalia was not only a distinguished jurist; he was a wonderful man, full of vitality and humor. He made no secret of his intense Catholicism, bred in him in his youth. (Nor did he hesitate to express his concerns when the Church seemed to him to be coming unmoored from the Great Tradition on which it was grounded.) He was a devoted husband and father, and his friendships extended far beyond the range of those who agreed with his jurisprudence. A man of honor and a dedicated public servant, he was, with Henry Hyde, one of the two most influential Catholics in national affairs during his years in Washington. He will be sorely missed, not only by those of us privileged to know him, but by anyone who cares about intelligence and integrity in public life.

There will be an enormous political struggle over filling his seat on the Court. It is far too early to know how that struggle will resolve itself. But it’s not too early to do Justice Scalia one last honor and ask the question, why is that struggle so crucial? Why has the Supreme Court become such a Leviathan in our national public life?

Something is wrong here. Last June, one man, Justice Anthony Kennedy, decided on behalf of 322 million Americans that the Constitution included a “right” for people of the same sex to “marry” each other. Put aside the fact that his reasoning was so specious (indeed vacuous) that the keener proponents of “same-sex marriage” were dismayed by it, and are trying to find another case that would put their “right” on firmer constitutional ground. Put aside the fact, previously noted, that after Justice Scalia’s dissent from Kennedy’s opinion, the dental records were needed to identify the remains. The real question was, is, and ought to be this: Why was one man deciding this for the entire country? Why was a deeply controverted issue being removed from the deliberation of the people and their legislators and decided by unelected and unaccountable judges? (Yes, I know, Supreme Court justices can be impeached; but if you believe that a remedy for Obergefell – or in just about any other imaginable instance – I have a nice bridge in Brooklyn to sell you.)

America would honor the memory of the great Antonin Scalia if the 2016 presidential campaign, which will now, inevitably and bitterly, engage the question of his successor, would seriously debate the prior questions: Why have these Supreme Court nominations become so important, and what can be done to restore balance to the American constitutional order?