Scalia and Ginsburg


You would have a hard time finding two judges further apart in their philosophies and beliefs about how the United States Supreme Court is to construe the Constitution than were Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg.  They were truly polar opposites - polar opposites and, yet, “best buddies”.

Their disagreements, rooted in the most profound philosophical differences about how government should work, in the meaning of the guarantee of personal liberty and in how judges should construe the Constitution, were not personal.  In disagreeing, they did not reduce themselves to the sort of personal accusation and name calling that we, unfortunately, sometimes see in political contests.  Mud slinging is not new in American politics.  Since the very founding of the Republic, political adversaries have engaged in vile personal attacks on their opponents directly and through proxies.  

Scalia and Ginsburg each consciously made the work of the other better by thoughtful, intelligent and respectful disagreement.  They deeply disagreed but they liked and respected each other.  They spared and exchanged contrary ideas on the most divisive issues in our country and yet, still, they were “best buddies”.  Their families vacationed together.  They spent holidays together and Antonin and Ruth very much enjoyed attending opera together.  This is the very best of what lawyers and judges do and, in the long history of American jurisprudence, no others ever did it better that Antonin Scalia and Ruth Bader Ginsburg.  

Lawyers and judges are in the business of disagreement.  We lawyers come to conclusions and to the resolution of highly disputed issues by engaging in a combat of the intellect.  We test our ideas against each other and sometimes we do this in front of juries who will decide and sometimes before judges who will decide.  In appellate courts, cases are heard by groups of judges who decide by majorities of the number of judges hearing the case.  Argument is the tool.  Confrontation cannot be avoided.  There are winners and there are losers.  

In remembering Justice Antonin Scalia, we need not agree or disagree with his numerous written opinions or his philosophy of government.  Rather, let us remember the example that he and his still serving “best buddy” Ruth Bader Ginsburg gave us about just how to disagree about ideas.  With the passage of time, the fire goes out of even the ugliest of disputes.  Forever lasting, however, as the very best example for lawyers and judges and even for politicians and citizens in general, is the real human warmth and sincere respect and friendship that Justice Scalia and Justice Ginsburg shared as they disagreed so fundamentally about ideas.

Content prepared by Edmond McGill. © Edmond McGill, 2016


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