High court’s odd cou­ple

Po­lar op­po­sites Gins­burg and Scalia have an un­com­mon bond off the bench.

Los Angeles Times - - FRONT PAGE - By David G. Sav­age

WASHINGTION — Jus­tices Ruth Bader Gins­burg and An­tonin Scalia seem un­likely friends.

Though both grew up in New York City and grad­u­ated from Ivy League law schools, Scalia went on to be­come a lawyer in the Nixon ad­min­is­tra­tion and a founder of the con­ser­va­tive Fed­er­al­ist So­ci­ety, and Gins­burg led the women’s rights pro­ject at the Amer­i­can Civil Lib­er­ties Union.

He’s brash and burly and be­lieves in strict ad­her­ence to the Con­sti­tu­tion’s orig­i­nal text. She’s soft- spo­ken and slight and be­lieves in a “liv­ing Con­sti­tu­tion” that can change with the times. On con­tro­ver­sial cases, they are of­ten the most likely of any pair­ing of the nine Supreme Court jus­tices to dis­agree.

De­spite their stand­ing as the in­tel­lec­tual lions of the left and right, Gins­burg and Scalia have forged an un­com­mon bond on a court where close friend­ships out­side of cham­bers are rare.

Their ar­eas of agree­ment may be few — which is likely to be the case this month when the jus­tices de­cide whether gay and les­bian cou­ples have a right to marry — but they main­tain a tone of re­spect.

Scalia, 79, and Gins­burg,

82, fre­quently dine and va­ca­tion to­gether. Ev­ery Dec. 31, they ring in the new year to­gether. Their re­la­tion­ship has even inspired an opera, set to de­but this sum­mer.

In joint ap­pear­ances, their mu­tual affin­ity and gen­tle josh­ing de­light au­di­ences, par­tic­u­larly at a time of bit­ter par­ti­san dif­fer­ences that have made friend­ships across the aisle dif­fi­cult.

“Call us the odd cou­ple,” Scalia said this year at a Ge­orge Washington Univer­sity event with Gins­burg. “She likes opera, and she’s a very nice per­son. What’s not to like?” he said dryly. “Ex­cept her views on the law.”

Seated next to Gins­burg on the stage, Scalia teased her about the mi­nor up­roar that oc­curred af­ter they were pho­tographed to­gether on an ele­phant dur­ing a trip to In­dia in 1994. “Her fem­i­nist friends” were up­set, Scalia said, that “she rode be­hind me.”

Gins­burg didn’t let him have the last word, not­ing that the ele­phant driver had said their place­ment was “a mat­ter of dis­tri­bu­tion of weight.” The au­di­ence, in­clud­ing Scalia, roared with laugh­ter.

She de­scribes her fond­ness for “Nino” by re­call­ing the time she f irst heard him speak at a law con­fer­ence, be­fore they be­came judges. “I dis­agreed with most of what he said, but I loved the way he said it,” Gins­burg re­counted.

The pair met in the early 1980s as judges on the U. S. ap­peals court in Washington; Scalia joined the Supreme Court in 1986 and Gins­burg fol­lowed in 1993.

He may have even played a small role in her ap­point­ment.

With Pres­i­dent Clin­ton pon­der­ing his f irst nom­i­na­tion to the high court, Democrats were anx­ious to f ind some­one who could do bat­tle on equal terms with the court’s dom­i­nant con­ser­va­tives.

A story went around Washington le­gal cir­cles that Scalia’s clerks had asked him at lunch: “If you had to spend the rest of your days ar­gu­ing with Mario Cuomo or Lau­rence Tribe, who would you choose?” The New York gover­nor and the Har­vard law pro­fes­sor were be­ing talked about as lead­ing can­di­dates.

Scalia sup­pos­edly replied, “Ruth Bader Gins­burg.”

A few weeks later, the pres­i­dent an­nounced her as his choice.

Lisa Blatt, a lawyer who ar­gues regularly be­fore the high court, said the judges had been close back when she clerked for Gins­burg in 1990. When Gins­burg’s hus­band, Martin, and sev­eral clerks ar­ranged a small party to celebrate her 10th year on the ap­peals court, only one jus­tice came by: Scalia.

Their friend­ship, Blatt said, is based on mu­tual re- spect and com­mon in­ter­ests that tran­scend their ide­o­log­i­cal dif­fer­ences.

“I don’t think they even try to inf lu­ence each other,” Blatt said. “Both of them sim­ply have huge per­son­al­i­ties, love the arts, like to laugh and are bril­liant.”

Ide­ol­ogy aside, Scalia has said he and Gins­burg are “le­gal aca­demics” who ap­pre­ci­ate good writ­ing and well- rea­soned ar­gu­ments. He once re­called that as a new ap­pel­late judge, he some­times sent col­leagues memos cri­tiquing their rea­son­ing in a par­tic­u­lar opin­ion. Most of­ten, he said, his mis­sives were not ap­pre­ci­ated.

But Gins­burg, who had taught at Columbia Univer­sity be­fore join­ing the Dis­trict of Columbia Cir­cuit, was glad to de­bate and wel­comed his com­ments.

Their off- the- bench friend­ship grew over time, aided by Gins­burg’s hus­band. By day he was a Georgetown law pro­fes­sor and one of the na­tion’s fore­most ex­perts on tax law. But, out­go­ing and funny, he also was an ex­tra­or­di­nary self- taught chef. When Sca-

lia and his wife, Mau­reen, came for din­ner at the Gins­burgs’ Water­gate apart­ment, part of the at­trac­tion was the meal Marty pre­pared.

Shortly af­ter her hus­band died of can­cer in June 2010, Jus­tice Gins­burg came to the court to de­liver an opin­ion. As she spoke, Scalia sat a few feet away, wip­ing tears.

Other jus­tices do so­cial­ize af­ter hours: Jus­tice Elena Ka­gan has gone hunt­ing with Scalia and to the theater with Gins­burg, and Chief Jus­tice John G. Roberts Jr. and Jus­tice An­thony M. Kennedy have been seen to­gether at Washington Na­tion­als games. But the Gins­burg- Scalia bond is spe­cial.

“She has very warm feel­ings” for him, said Sa­muel Ba­gen­stos, a Univer­sity of Michigan law pro­fes­sor who clerked for Gins­burg. “There is a per­sonal con­nec­tion with him un­like any of the other jus­tices.”

That friend­ship has done lit­tle to shade or soften their le­gal views. Scalia has never mocked her opin­ions in the way that he wrote dis­mis­sively of, for ex­am­ple, for­mer Jus­tice San­dra Day O’Con­nor or Kennedy. But their ar­eas of agree­ment are few.

Though all the jus­tices typ­i­cally agree in about three- fourths of cases in­volv­ing is­sues like bank­ruptcy, patents or le­gal pro­ce­dure, Scalia and Gins­burg regularly are on op­po­site sides in mat­ters that di­vide the na­tion — in­clud­ing abor­tion, af­fir­ma­tive ac­tion, cam­paign fund­ing, the death penalty, the en­vi­ron­ment, gay rights and gun rights.

In sum­mer 2012, when the court ended with a close split on Pres­i­dent Obama’s healthcare law and Ari­zona’s strict immigration law, Scalia and Gins­burg had agreed in 56% of the term’s cases — the low­est rate of any two jus­tices. When only the 5- 4 de­ci­sions were in­cluded, they agreed just 7% of the time.

Gins­burg be­lieves the Con­sti­tu­tion’s guar­an­tee of “equal pro­tec­tion” of the laws must evolve with soci- ety. In the 1970s, that meant an end to gen­der dis­crim­i­na­tion. And this term, she is al­most cer­tain to vote in fa­vor of an equal right to marry for gay and les­bian cou­ples.

Scalia in­sists the Con­sti­tu­tion should be in­ter­preted the way its orig­i­nal writ­ers would have un­der­stood it. By that stan­dard, he says, no one would say the 14th Amend­ment in 1868 was adopted to for­bid dis­crim­i­na­tion against gays.

“They have a very dif­fer­ent vi­sion of the Con­sti­tu­tion and its pro­tec­tion for lib­erty and equal­ity,” said Duke law pro­fes­sor Neil Siegel. “If Jus­tice Scalia had his way, he would go a long way to de­stroy­ing her life’s work in sex­ual equal­ity, abor­tion, preg­nancy dis­crim­i­na­tion.”

When Gins­burg in 1996 wrote her first ma­jor opin­ion and ruled that the Vir­ginia Mil­i­tary In­sti­tute and other all- male public col­leges must open their doors to qual­i­fied women, Scalia wrote the lone dis­sent.

And even to­day, he in­sists he was right. He told the Ge­orge Washington Univer­sity au­di­ence that the mil­i­tary ser­vice academies have lost their luster as train­ing grounds for “war­riors” now that women are en­rolled.

“That ar­gu­ment won’t work, Nino,” Gins­burg said, not­ing that most VMI grad­u­ates did not join the mil­i­tary.

Later, when Gins­burg in­sisted the court’s con­stitu- tional de­ci­sions should ref lect chang­ing so­cial at­ti­tudes, Scalia ob­jected. “We’re not go­ing to agree on this, Ruth,” he said.

Af­ter the court ad­journs for the sum­mer, the pair’s un­usual friend­ship will be on dis­play in a comic opera called “Scalia/ Gins­burg: A ( Gen­tle) Par­ody of Op­er­atic Pro­por­tions.” Its com­poser, Derrick Wang, said he dis­cov­ered a truly op­er­atic char­ac­ter when he read Scalia’s dis­sents as a law stu­dent at the Univer­sity of Mary­land.

“When­ever I en­coun­tered the phrase — ‘ Scalia J., dis­sent­ing ’ — I would hear in my head a rage aria. That’s a type of aria where the char­ac­ter is in­censed and ex­presses anger. It’s a f it­ting way to in­tro­duce Jus­tice Scalia as pas­sion­ate, dis­grun­tled and rooted in the 18th cen­tury,” Wang said.

The opera will pre­miere July 11 at the Castle­ton Fes­ti­val in Vir­ginia. It opens with the Scalia char­ac­ter singing, “The jus­tices are blind. The Con­sti­tu­tion says noth­ing about this!” But when he is im­pris­oned for “ex­ces­sive dis­sent­ing,” help ar­rives in the form of Gins­burg — break­ing through a glass ceil­ing to res­cue him.

Gins­burg plans to at­tend the pre­miere. It is “for me a dream come true. If I could choose the tal­ent I would most like to have, it would be a glo­ri­ous voice. I would be a great diva, per­haps Re­nata Te­baldi or Bev­erly Sills,” she wrote in a fore­word to the opera. “But my grade school mu­sic teacher, with bru­tal hon­esty, rated me a spar­row, not a robin.”

As usual, Scalia sees it a bit dif­fer­ently. “I could have been a con­tendah — for a di­vus, or what­ever a male diva is called,” he wrote in re­sponse. He said he has sung in choral groups and once “joined the two tenors from the Washington Opera singing var­i­ous songs at the pi­ano.... I sup­pose, how­ever, it would be too much to ex­pect the au­thor of ‘ Scalia/ Gins­burg’ to al­low me to play ( sing) my­self. Even so, it may be a good show.”

‘ If Jus­tice Scalia had his way, he would go a long way to de­stroy­ing her life’s work in sex­ual equal­ity, abor­tion, preg­nancy dis­crim­i­na­tion.’

— Neil Siegel,

Duke law pro­fes­sor

Alex Wong Getty I mages

SUPREME COURT Jus­tices An­tonin Scalia and Ruth Bader Gins­burg in 2014. Their friend­ship was aided by Gins­burg’s late hus­band, an ex­tra­or­di­nary chef.

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