The Scalia/Ginsberg Model

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. 

So wrote Ruth Bader Ginsberg, a tiny Supreme Court judge who can consistently be counted on to vote with the progressive wing of the Court, a tireless advocate for the role of government, someone who believes that Constitution of the United States is, first of all, a historic document.

She's speaking, of course, of Justice Antonin Scalia, with whom she shared a love of opera, a man whose sudden and very sad death occurred last weekend. 

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.

Antonin Scalia was, in spades, everything Ruth Bader Ginsburg was not. Ginsburg was a sparrow; Scalia was massive, operatic. He was Roman Catholic to his toes; she was Jewish. He loomed over the court in a fashion that no one else did or could have or even wanted to. His incredible writing left indelible marks, even if you agreed with him. In every way he was a monumental presence.  

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.

What he brought to the court was a view of the Constitution that was both new and old, a view of the document itself as "enduring," as he liked to say, meaning that it wasn't simply an artifact of our nation's past, some treasured old letter from the earliest generation of American philosophers and scholars. It was something else, something to be handled as if alive. "Originalism," people call his view, and although Scalia might not talk about "the inspiration of the Constitution" in the same sense that he might talk about "the inspiration of the Scripture," in some recognizable sense that comparison is apt. Scipture lives, as does, he'd say, the Constitution of the United States.

Ruth Bader Ginsburg is no "originalist," but she openly and even lovingly acknowledges that her "best buddy" behind the bench changed the way all of us regard that document. 

The two of them must have had royal battles, but what they shared was deep respect for the foundations of the very nation they both served and loved. They were polar opposites who loved each other immensely. "It was my great good fortune," she's said, "to have known him as working colleague and treasured friend."

Listen to the news today. It's regrettable that we don't seem able to live in the shadow of that treasured relationship, that we can't get along. 

As they did. 

That they were good teachers goes without question. Simply stated, we're not good students.