Of supreme im­por­tance

El Dorado News-Times - - Viewpoint - Caleb Baum­gard­ner is a lo­cal at­tor­ney. He can be reached at caleb@baum­gard­ner­law­firm.com.

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 Lo­cal Colum­nist

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