Justice Ginsburg opens up about working with Antonin Scalia at Aspen event

U.S. Supreme Court Justice Ruth Bader Ginsburg getting interviewed by President and CEO of the Aspen Institute Walter Isaacson in the Greenwald Pavilion of the Aspen Institute on Tuesday evening.
Anna Stonehouse/The Aspen Times |

While former U.S. Supreme Court Justice Antonin Scalia possessed many gifts, his wit particularly stood out to his good friend and ideological opposite on the court, Justice Ruth Bader Ginsburg.

“He had that rare talent of making even the most sober judge smile,” Ginsburg said Tuesday during a discussion with Walter Isaacson at the Aspen Institute that centered on her relationship with Scalia, who died in February 2016.

During panel discussions outside the Supreme Court, Ginsburg said she would have “to pinch myself hard to stop my uncontrollable laughter at his quips.” Then, when the court was in session, Scalia would send her notes that had much the same effect, she said.

Scalia and Ginsburg’s friendship began during Scalia’s days as a professor at the University of Chicago Law School, before he joined her on the U.S. Court of Appeals for the Washington, D.C., Circuit in 1982, Ginsburg said.

“Our friendship was regarded by some as puzzling,” she said.

However, the annals of U.S. judiciaries are filled with friendships that span the ideological divide, so “there was nothing odd about our friendship,” Ginsburg said.

Scalia possessed “an uncommon clarity and an inimitable style” when it came to the law, which Ginsburg said made her own opinions stronger and more convincing. In fact, Scalia would sometimes stop by her office and point out a mistake she made in an opinion the court was working on instead of sending the error through established channels, she said.

“He thought it might embarrass me,” Ginsburg said. “He honed in on all the soft spots.”

Even when Scalia penned a scathing dissent — as in the case of the Supreme Court’s 1996 decision allowing women to attend the Virginia Military Institute — he showed Ginsburg a copy before it was published so she could have as much time as possible to formulate her opinion, she said.

However, that did not always occur, Ginsburg said.

Isaacson called Scalia’s dissent in the 2015 case that legalized gay marriage one of his “most vibrant,” and asked Ginsburg if they talked about it before it was released publicly.

“There was no room for discussion on that issue,” she said.

Still, Ginsburg pointed out the unique power of U.S. Supreme Court dissents when an audience member asked her about the 2010 Citizens United decision, which found that free speech prohibits the government from restricting independent political donations by corporations and other entities. Ginsburg said she thinks the Supreme Court one day may revisit the opinion.

“There’s a great history in our country of dissenting opinions becoming the law of the land,” she said. “Scalia himself said that when the court gets it wrong, it’s good to note a justice or two dissented correctly.”

Even in the worst case ever decided by the U.S. Supreme Court — the 1857 Dred Scott opinion, which held that a black man whose ancestors were brought to the U.S. as slaves could not be a citizen and could not sue in federal court — two justices dissented, Ginsburg said.

Many other countries do not issue dissenting opinions at all, she said.

“They think it’s dangerous to let people know there’s more than one way to read the law,” Ginsburg said.

Beyond the law, Ginsburg and Scalia shared a “passion” for opera, she said. The two portrayed extras in a Washington, D.C., opera production together and Ginsburg recalled the joy Scalia experienced during an opera ball in 2009 when he joined two professional tenors at the piano for a medley of songs.

That shared passion has now been documented for posterity by Derrick Wang, who wrote a comic opera about the friendship between the two justices called “Scalia/Ginsburg,” she said.

Based on “The Magic Flute,” the opera begins with Scalia locked in a room “for excessive dissenting,” Ginsburg said.

“I enter through a glass ceiling,” she said. “I’m there to help him …”

Someone says, “He’s your enemy. Why would you want to help him?” Ginsburg said. “I say, ‘He’s not my enemy, he’s my friend,’ and we break into a duet called ‘We Are Different But We Are One.’”

The lesson is particularly fitting for the current political climate, she said.

“Our friendship encourages us to learn that very good people have opinions different from our own,” Ginsburg said.