Scalia, Ginsburg Strike a Balance

Pals Ginsburg, Scalia Ring in the New Year Together, then Duke it Out in Court

By Joan Biskupic
USA Today

Dec. 26, 2007—

She is the nation's top female judge, a former ACLU lawyer who embodies the women's liberation movement of the 1970s.

He is a die-hard conservative who helped found the Federalist Society and who personifies the Republican effort to remove judges from America's social debates.

From the bench, she speaks in a slow, measured voice. Her hypothetical questions about lawyers feature a generic "she," not the conventional "he."

He is brash, fast-talking and wise-cracking. He could never be accused of being politically correct.

Yet this New Year's Eve, as they have done for more than two decades, Justice Ruth Bader Ginsburg and Justice Antonin Scalia will join with their spouses and another couple or two at the Ginsburgs' large Watergate apartment. After the caviar and wine, they may dine, as they have in the past, on something Scalia has bagged on one of his hunting trips.

A few days after they have toasted 2008, Ginsburg and Scalia will be back on the bench hearing cases involving voter-identification rules and the death penalty.

They are likely to be ??? once again ??? miles apart in their views.

The friendship of Ginsburg and Scalia, unlike that of any other pair of justices in recent times, has intrigued ??? and mystified ??? observers for nearly three decades.

"They are totally different people," says Washington lawyer Theodore Olson, who has joined their dinner in recent years and will again this year. "But they have a very comfortable relationship. They respect each other's intellect. They both love music and opera."

During Ginsburg's confirmation hearings in 1993, senators asked about her bond with Scalia. Democrats seemed to fear that he might influence her.

Sen. Herb Kohl, D-Wis., prefaced his questions by repeating a well-known story of the day: As President Clinton was considering various liberals for the court, one of Scalia's law clerks asked him whether he would rather be stranded on a desert island with Harvard University law professor Lawrence Tribe or former New York governor Mario Cuomo.

Scalia responded, "Ruth Bader Ginsburg."

Kohl asked Ginsburg whether she similarly would like to be stranded with Scalia and, more important, whether she shared his views.

"I can say one thing about Justice Scalia," Ginsburg replied. "He is one of the few people in the world who can make me laugh, and I appreciate him for that."

As to whether liberal Ginsburg joined Scalia on the right: not at all. Neither did Scalia move left. They have stayed ideological opposites.

Abortion rights? She's for. He's against. School integration plans? She's for. He's against. Affirmative action on campus? She's for. He's against. Even on legal questions that do not make the front page of newspapers, they often are at odds.

Last term, she disagreed with Scalia 52% of the time in non-unanimous cases, according to SCOTUS blog, a website run by the Washington law firm Akin Gump that tracks such data. The only justice she disagreed with more was Clarence Thomas, 55% of the time. Ginsburg disagreed with fellow Clinton appointee Stephen Breyer 13% of the time in non-unanimous cases.

Beyond the law, Ginsburg and Scalia seek each other out.

"I have always enjoyed Nino," Ginsburg said in an interview, echoing her comment at the hearing: "No matter how overworked and tired I feel, he can always say things that make me laugh. He can also say things I find provocative, even irritating."

For his part, Scalia says he likes his colleague "because she is an intelligent woman and a nice woman and a considerate woman ??? all the qualities that you like in a person."

Similar backgrounds

Despite differences as jurists, Ginsburg and Scalia share some similarities in their backgrounds.

Ginsburg was born in Brooklyn, N.Y., on March 15, 1933. Scalia was born in Trenton, N.J., on March 11, 1936. He spent much of his childhood in Queens and considers himself more of a New Yorker than a New Jersey man. In high school, she was a twirler. He marched in the band with his French horn.

Ginsburg ended up at Harvard Law School by way of Cornell University for her bachelor's degree. He also ended up at Harvard via Georgetown University for his bachelor's. They briefly overlapped at Harvard but did not meet. Ginsburg transferred to Columbia University for her last year of law school to be in New York with her husband, Martin, who had earned his law degree a year earlier.

The Ginsburgs have two grown children, ages 52 and 42. Scalia and his wife, Maureen, have nine children, ranging from 46 to 27. The spouses get along well. Maureen and Martin enjoy cooking. Olson says the New Year's Eve tradition is "Scalia kills it and Marty cooks it."

Ginsburg and Scalia were on separate professional paths for much of the 1960s and 1970s, although both were drawn to academia.

Ginsburg taught at Rutgers University Law School and in 1972 became the first woman named to a tenured position at Columbia Law School. She also founded the ACLU's Women's Rights Project and won five cases at the Supreme Court that secured greater protection against sex discrimination.

After Harvard, Scalia went into private practice in Cleveland for the firm of Jones, Day, Reavis and Pogue. Eager to teach, he then took a job at the University of Virginia law school. He left the campus to work in various roles in the Nixon and Ford administrations, including as an assistant attorney general. When Jimmy Carter won, Scalia returned to teaching, this time at the University of Chicago.

He chalks up his friendship with Ginsburg partly to their shared history as law professors. When they began working together as judges, he says, they would read each other's opinions with a scholarly eye and offer suggestions on the writing. "I would treat her like a colleague on the faculty," he said.

Ginsburg and Scalia first crossed paths in the late 1970s when Ginsburg heard him give a speech critical of a ruling by the U.S. Court of Appeals for the District of Columbia Circuit. The decision interfered with U.S. regulators' licensing of a Vermont nuclear power plant. Scalia used it as an example of judges improperly stepping on the authority of the executive branch.

Ginsburg disagreed with his criticism of the D.C. Circuit, "but I was fascinated by him," she said later, "because he was so intelligent and so amusing."

In 1980, Ginsburg, who had gained a national reputation for her legal strategies against sex discrimination, was appointed to the prestigious D.C. Circuit by President Carter.

Scalia, who was gaining attention for railing against judges who broadly interpreted individual rights, was named to the D.C. Circuit in 1982 by President Reagan.

Their New Year's Eve tradition began there and continued after they were each elevated to the Supreme Court ??? he in 1986 by Reagan, she in 1993 by Clinton.

"Their bond is in off-hours pursuits," says Frank Lorson, a retired chief deputy clerk of the Supreme Court and a longtime friend of Ginsburg's.

They enjoy all forms of classical music and attended a Washington Performing Arts Society celebration last month that featured cellist Yo-Yo Ma.

In 1994, they appeared in white powdered wigs and 18th-century costumes as "extras" in the Washington National Opera's production of Richard Strauss' Ariadne aufNaxos. In pictures, they look like excited children playing dress-up.

The classic image of the pair is a picture of them on a judicial trip to India in 1994. Scalia sits on the front of an elephant with Ginsburg behind him. Ginsburg has said her feminist friends sometimes ask why she is sitting in the back.

"It had to do with the distribution of weight," the petite justice answered.

Tough demeanor

On the bench and in matters of law, there is nothing playful about their relationship. During oral arguments, they often try to undercut each other's ideologically opposite lines of reasoning.

An argument this term in the criminal law case of Danforth v. Minnesota was Exhibit A. Scalia jumped in with a difficult question for a state public defender at the lectern. As Benjamin Butler answered, Ginsburg interjected, "That issue is not a necessary part of your case at all, is it?"

Later, when she raised a point that would help Butler's case, Scalia discounted it.

Scalia tends to get the last word on the bench, although Ginsburg tries. During the same case, Patrick Diamond, representing the state, came to the lectern. Scalia pounced after a question from Justice Breyer and started telling the lawyer how he should answer.

"You wouldn't want to say that ???, " Scalia began, referring to Breyer's comment and then expounding on his own view. Before Diamond could respond, Chief Justice John Roberts jokingly referred to Scalia's approach. "I think you're handling these questions very well," Roberts quipped.

The audience laughed. Ginsburg did not. "That was not a question addressed to you," she sternly told Diamond of Scalia's statement.

During oral arguments in early December over the rights of Guantanamo detainees, Scalia grilled Seth Waxman, the detainees' attorney. Scalia told him the past rulings he cited were not on point. As Waxman added others, Scalia knocked them down. An exasperated Waxman replied, "I'll take one more chance, Justice Scalia."

"OK, try them," Scalia retorted. "I mean, line them up."

For her part, Ginsburg homed in on U.S. solicitor general Paul Clement, representing the government's position against the foreign detainees. She was, naturally, less flip.

Life outside the court

Such differences, stylistic and substantive, have not hampered their extracurricular life.

Retired chief deputy clerk Lorson notes that other pairs of justices have shared interests, such as the late Harry Blackmun and Potter Stewart, who were baseball fanatics. In one famous incident during oral arguments on Oct. 10, 1973, Stewart slipped Blackmun a note that said, "V.P. AGNEW JUST RESIGNED!! METS 2 REDS 0."

Scalia and former chief justice William Rehnquist played poker together, and Justice Anthony Kennedy and retired justice Sandra Day O'Connor played bridge.

But court insiders, including Lorson, who worked at the marble columned building for more than three decades, say they never have known a pair to share so many outside social and cultural pursuits as Ginsburg and Scalia.

Asked whether he could envision any other twosome spending every New Year's Eve together, Lorson says, "I just can't imagine it."