The two justices put their friendship on display at the George Washington’s Lisner Auditorium.
February 13, 2015
In the moments before Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia took their seats at the George Washington University’s Lisner Auditorium, you could just barely see their figures rustling behind the dark curtain. NPR’s Nina Totenberg emerged first, ready to lead the pair in a conversation organized by Smithsonian Associates, and then the 81-year-old Justice Ginsburg pattered slowly onstage. Behind her tiny, 5-foot frame, the corpulent and broad-shouldered Justice Scalia ambled to his chair.
Something about the contrasts of their sizes gives the pair the celebrity magic of a cartoon duo—except, these are two of the most respected law practitioners in the country. That, and their rapid-fire humor and divergent legal views, drew in a completely packed audience to the event Thursday night, during which the two justices uncovered countless facets of their relationship.
Both Harvard Law School graduates, they crossed paths while serving on the D.C. Circuit Court. Justice Scalia had the unpopular habit of editing his fellow judges’ opinions, and while most of his colleagues balked at the unsolicited revisions, Justice Ginsburg didn’t mind. In fact, she’d make comments on Justice Scalia’s writings, too. Her love of opera also set her apart.
“What’s not to like?” Justice Scalia said, before quickly deadpanning, “except her views on the law.”
It was a light joke, but one that gets to the heart of why the two are referred to as “the odd couple.” Justice Scalia and Justice Ginsburg stand as pillars for two opposing views of the Constitution. Justice Ginsburg, a pioneer for women’s rights and a fixture in the liberal world, frequently has touted the importance of a “living Constitution.” Through a conservative lens, Justice Scalia interprets the document as fixed.
“To my mind, no Constitution is living unless it is enduring. If it is subject to whimsical change by five out of nine votes on the Supreme Court that decide it ought to be mean something different… that is not a living Constitution,” he said.
Justice Ginsburg broke in to remind him that those who built the Constitution “were white, property-owning men.” Justice Scalia was obdurate in explaining that his opinion is simply a matter of questioning how decisions are made in the federal system.
“Don’t paint me as anti-gay or anti-abortion,” he said. “All I’m doing on the Supreme Court is opining about who should decide.”
Matters of the law got the justices most passionate—almost vehement at points, in a way that left the audience surreptitiously exchanging glances like children overhearing their parents argue loudly.
But even at their most confrontational, the justices remained even-keeled, showing that their bond comes first. Justice Ginsburg interrupted Justice Scalia at one point with a gentle urging of, “But that argument won’t work, Nino…” employing the nickname Justice Scalia reserves for close friends and colleagues.
The back-to-back banter illustrated good humor rather than genuine disputes. Justice Scalia recalled the 1996 case when the Supreme Court struck down the Virginia Military Institute’s male-only admissions policy. In the decision, Justice Ginsburg mistakenly referred to “The University of Virginia at Charlottesville” in a footnote, an error Justice Scalia was quick to point out.
She fixed the missive not by changing the name of the school, but by quoting another judge who had referred to the university in the same way.
“She knew it was wrong, but she was too proud to change it,” Justice Scalia remembered, crossing his arms in a pantomime of annoyance.
Ms. Totenberg also pulled anecdotes of the justices at their most candid. She recalled pictures of Justice Ginsburg dozing off at the 2014 State of the Union. Justice Ginsburg, a cult-like figure who young people refer to as the “Notorious RBG,” added to her rock star status by announcing: “I was not 100 percent sober”—an admission that drew the attention of national media.
The pair also got personal, discussing trips they’ve taken together, including when Justice Scalia watched in alarm as Justice Ginsburg went parasailing in France (“She's so light you would think she would never come down!”), and a “bumpy ride” they took atop an elephant in India.
“Her feminist friends gave me a hard time because she rode behind me on the elephant,” Justice Scalia said.
Justice Ginsburg shot back, “It was a matter of distribution of weight.”
And she didn’t forget that snarky reference to her girlfriends. She later discussed a new opera Derrick Wang wrote about the justices’ relationship that will premiere to the world at the Castleton Festival this summer. It’s titled, “Scalia/Ginsburg.”
“My feminist friends have asked why I allowed his name to go first,” Justice Ginsburg smiled.
“Seniority, Ruth,” Justice Scalia piped up, alluding to the fact that he is the second longest-serving justice.
“That’s right.” Justice Ginsburg nodded in agreement and explained that seniority dictates most things on the court.
At least it was one thing they agreed on.