When U.S. Supreme Court Justice Antonin Scalia died, I learned that he and Justice Ruth Bader Ginsberg, God rest both their souls, were best friends and had lunch together once a week. I can still remember how happy I was to learn that fact, though I am sure some folk who are deeply politically partisan were dismayed or even angered by it because that’s what our political culture tries to instill in us.
I can hear it now. Liberals saying that Justice Ginsberg betrayed her ideals and everyone who held them by having someone like Justice Scalia for a best friend, and conservatives speculating that perhaps Justice Scalia had been corrupted by Sorosian influence.
Both notions are, needless to say, ridiculous, as is the blithering, mindless political partisanship that creates them.
Between being a law student and an attorney, I’ve read an awful lot of U.S. Supreme Court opinions written over the course of the last 217 years. More than your average bear, for sure. And the thing that most people don’t know about the Court is that nearly all of its decisions are unanimous. All nine justices agree on whatever issues are presented to them and hand down a decision accordingly. This accounts for most of the 100-150 cases the Court agrees to hear every year (and that is of the more than 7,000 cases it annually receives petitions to hear). Sometimes one justice or two will dissent, but this is unusual. Only a handful of cases ever divide the Court, and those tend to be the ones that receive a good deal of public attention. This creates a widely held public perception that the Court is sharply divided along political lines, but that perception is simply false. So, I would first like to dispense with that idea.
The fact is that Justices Scalia and Ginsberg agreed on far more than they disagreed on with regard to the law. If this creates an existential dilemma for you, I respectfully suggest re-evaluating your life’s priorities. And should you feel compelled to shout “FAKE NEWS” into the wind upon reading this, I invite you to read some SCOTUS opinions for yourself. They are publicly available.
I’m also going to put it out there that both Justice Scalia and Justice Ginsberg were far smarter than most of the people disparaging them when they passed, from professional pundits to internet legal scholars (My use of that term is extraordinarily loose). In law school I had a professor who taught me Contracts, Secured Transactions, and a hybrid class on philosophy of law and Constitutional theory. He’s a pretty liberal guy and is also very bright. When Justice Scalia died, he said that the Court had lost its greatest mind, and he genuinely believed that to be true. A picture of the two of them talking amicably hangs in his office.
If he can be that way, so can the rest of us.
For myself, I have used opinions written by Justice Ginsberg as the basis for legal arguments in my law practice, and when I was in law school, I wrote a defense of Constitutional Originalism for a class which drew heavily on an essay authored by Justice Scalia. I’m not a Constitutional Originalist though, nor am I a Living Constitutionalist, which are the two dominant schools of Constitutional theory. I’m a Living Textualist, which is a hybrid of the two, because to me that’s the reading of the Constitution that makes the most sense. I agree and disagree with certain opinions written by both Justice Scalia and Justice Ginsberg, because my view of the law is not defined by politics.
That’s also true of my sense of morality, my religious beliefs, my reading of history, how I judge the veracity of information, and how I judge the character of others. Justices Scalia and Ginsberg were able to be such good friends because they knew that. They also based their relationship and interactions with one another on a bedrock of mutual respect for the other as a person, which is another thing our political culture tries to destroy in us but is desperately necessary.
Unless we can learn to see each other as human beings with inalienable dignity before anything else, we are going to wind up in a place that is very, very, very bad for everyone. That is true whatever political stripe you claim. If you think that your politics make you righteous and that only your political enemies will suffer such a fate once your inevitable triumph comes, I’ve got news for you. There are plenty of people throughout history who thought just the same who wound up in concentration camps, gulags, and unmarked graves who were put there by their former political allies.
Think on that.
And in the meantime, take an example from Justice Scalia and Justice Ginsberg. They understood something that too many of the rest of us apparently don’t.
‘Til next week.
Caleb Baumgardner is a local attorney. He can be reached at [email protected].