Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, March 1, 2020

The Friendship Between Justices Antonin Scalia and Ruth Bader Ginsburg – A Lesson in Professionalism, Civility, and Respect for Diverse Viewpoints

Justices Antonin Scalia and Ruth Bader Ginsberg were, as Justice Ginsburg stated, “best buddies.”[1]

Some might find their friendship surprising. After all, Justices Scalia and Ginsburg embraced very different views regarding constitutional theory and interpretation. Justice Scalia was an originalist and thus believed that the Constitution’s words were fixed and should be interpreted based on what the drafters intended those words to mean.[2] Justice Ginsburg is arguably a “living constitutionalist" and believes that the Constitution’s meaning may change over time to comport with contemporary understandings and present-day realities.[3]

Not surprisingly, Justices Scalia and Ginsburg disagreed – often strenuously – in many significant and controversial decisions, such as in Lawrence v. Texas, where the Court invalidated a statute banning same-sex sodomy, Atkins v. Virginia, where the Court held that the execution of intellectually disabled defendants violated the Eighth Amendment, National Federation of Independent Investors v. Sebelius, where the Court upheld the Affordable Care Act, Obergefell v. Hodges, where the Court invalidated same-sex marriage bans, and Bush v. Gore, where the Court overturned the Florida Supreme Court’s decision ordering a statewide recount of votes cast in the Presidential election between George W. Bush and Al Gore.[4]

Despite these disagreements – and despite fundamentally different approaches to constitutional interpretation – Justices Scalia and Ginsburg were, as Justice Ginsburg stated, “best buddies.”[5] As Justice Ginsburg explained:

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp. Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as a working colleague and treasured friend.[6]

Justice Scalia was similarly complimentary of Justice Ginsburg, describing her as an “intelligent woman and a nice woman and a considerate woman — all the qualities that you like in a person.”[7] Indeed, when asked about their friendship, Justice Scalia replied: “what’s not to like?”[8]

In fact, Justices Scalia and Ginsburg “frequently dine[d] and vacation[ed] together,” and “[e]very Dec. 31, they [rang] in the new year together.”[9] As one commentator described:

They and their families spent New Year's Eve together every year. They rode together on an elephant in India (Scalia joked that Ginsburg betrayed her feminism by sitting behind him), and Scalia watched Ginsburg go parasailing in the south of France (“She's so light, you would think she would never come down. I would not do that”).[10]

Ultimately, Justices Scalia and Ginsburg demonstrate that it’s ok to disagree – even strenuously – on various issues and still be friends. After all, people come from different backgrounds and experiences. They see the world differently and have different perspectives. This doesn’t mean that one person’s viewpoint is more ‘right’ than another’s. It simply means, as Justices Scalia and Ginsburg sang in a duet, “[w]e are different, [but] we are one.”[11]

Lawyers and law students should remember the example set by Justices Scalia and Ginsberg. Put simply, “[t]hey weren't friends despite their divergent interpretations of the Constitution … [t]hey were friends, in part, because of it.”[12]

[1] Pete Williams and Elisha Fieldstadt, Justice Ruth Bader Ginsburg on Justice Antonin Scalia: We Were Best Buddies’ (Feb. 2016), available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).

[2] See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019); see also Justices Ginsburg and Scalia, A Perfect Match Except for Their Views on the Law (Feb. 2015), available at: https://www.npr.org/sections/thetwo-way/2015/02/13/386085342/justice-ginsberg-admits-to-being-tipsy-during-state-of-the-union-nap

[3] See id.

[4] 539 U.S. 558 (2003); 536 U.S. 304 (2002); 567 U.S. 519 (2012); 135 S. Ct. 2584 (2015); 531 U.S. 98 (2000).

[5] Williams supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).

 [6] Id. (emphasis added).

[7] Joan Biskupic, Scalia, Ginsburg Strike a Balance (Dec. 2007) available at: https://abcnews.go.com/TheLaw/story?id=4053142&page=1

[8] Ariane de Vogue, Scalia-Ginsburg Friendship Bridged Opposing Ideologies (Feb. 2016), available at: https://www.cnn.com/2016/02/14/politics/antonin-scalia-ruth-bader-ginsburg-friends/index.html

[9] David G. Savage, From the Archives: BFFs Ruth Bader Ginsburg and Antonin Scalia agree to disagree (June 2015), available at: https://www.latimes.com/local/lanow/la-na-court-odd-couple-20150622-story.html (brackets added).

[10] Dara Lind, Read Justice Ginsburg’s Moving Tribute to her “Best Buddy” Justice Scalia (Feb. 2016), https://www.vox.com/2016/2/14/10990156/scalia-ginsburg-friends.

[11] Williams and Fieldstadt, supra note 1, available at:  https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (brackets added).

[12] Sasha Zients, Justice Scalia's Son: Washington Can Learn From Dad's 'Rich Friendship' with RBG (Aug. 2018), available at: https://www.cnn.com/2018/08/23/politics/scalia-son-rbg-podcast-cnntv/index.html (emphasis added).

https://lawprofessors.typepad.com/appellate_advocacy/2020/03/the-friendship-between-justices-antonin-scalia-and-ruth-bader-ginsburg-a-lesson-in-professionalism-c.html

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