Today is “the first Monday in October” — the day designated by Congress for the Supreme Court of the United States to begin its new term. For the first time in the Court’s 233-year history, the Justices who took the bench this morning included an African-American woman, Ketanji Brown Jackson. Equally significant, four women took the bench this morning — another first for the Supreme Court!
But for the third year in a row, following 27 years in which the same could not be said, the Justices who took the bench this first Monday in October did not not include a Justice named “Ruth.”
Ruth Bader Ginsburg was one of the most diminutive Justices ever to serve on the Supreme Court, but the “Notorious RBG” —- as she came to be known —- was the only one who was larger than life. Following her death on September 18, 2020, she became the first woman in United States history to lie in state in the National Statuary Hall of the Capitol.
The only Justice who ever came close to matching Ruth’s “rock-star” status was Antonin Scalia. “Nino” — as he was known — was Ruth’s antithesis in almost every conceivable way. He was portly; she was petite. He was gregarious; she was demure. He was staunchly conservative; she was unfailingly liberal. He was an originalist and a textualist; she believed the Constitution was a living, breathing document. He was Roman Catholic; she was Jewish.
They were also the best of friends.
Their friendship began in 1982, when Ronald Reagan appointed Scalia to serve on the U.S. Court of Appeals for the D.C. Circuit, the same court to which Ruth had been appointed by Jimmy Carter. They soon discovered that they shared a love of opera. Together with their spouses, they began a tradition of sharing New Year’s Eve with one another.
In 1986, President Reagan appointed Judge Scalia to the Supreme Court. Seven years later, President Clinton appointed Judge Ginsburg to the Supreme Court. During their summer hiatus, Ruth and Nino frequently traveled together, including a memorable visit to India where they were famously photographed riding an elephant. Describing the occasion to a reporter, Scalia noted: “Some of her feminist friends gave me a hard time because she rode behind me on the elephant.” Ruth quickly responded, with just the slightest twinkle in her eye and a playful smile on her face: “The driver explained it was a matter of distribution of weight.”
Ruth often said that what she loved most about Nino was that he made her laugh, but clearly she was able and willing to give as good as she got.
The Ginsburg and Scalia families were so close that Justice Scalia wept openly on the last day of the Supreme Court’s term in 2010, when Chief Justice John Roberts announced from the bench that Ruth’s husband, Marty, had died the day before.
Following Justice Scalia’s unexpected death in 2016, Ruth wrote a loving tribute in which she said: “We were best buddies.” They had served together on the high court for more than 22 years.
The substantive disagreements between Ginsburg and Scalia could not have been more public, more pronounced, more pointed nor more permanent — preserved for posterity in the majority, concurring and dissenting opinions each authored. In private, however, their friendship could not have been more genuine, more precious, more durable nor more poignant.
After Ruth died, Christopher Scalia shared the story of an encounter between his father and a fellow judge years earlier in Justice Scalia’s chambers. Justice Scalia pointed to two dozen roses he was planning to deliver to Ruth for her birthday. The judge asked Justice Scalia what giving roses had ever done for him: “Name one 5-4 case of any significance where you got Justice Ginsburg’s vote.” Justice Scalia replied: “Some things are more important than votes.”
With public discourse even more divisive than it was last year at this time, with the nation even more divided as a result of the events of January 6th and everything that has transpired since that date, with the Supreme Court itself having become a lightning rod for controversy because of the unprecedented leak of the draft opinion in Dobbs followed by the decision overturning Roe v. Wade, with the midterm elections barely a month away and a reported 201 election-deniers on the ballot, with democracy itself seemingly under attack, Justice Scalia’s words echo more loudly than ever.
The friendship between Ruth Bader Ginsburg and Antonin Scalia offers life-lessons for all of us, lessons which could not be more timely nor, in my opinion, more relevant to the mediation process. Whether disputes are personal, political, philosophical or otherwise, there are certain truths — all too often forgotten — which are no less “self-evident” than the truths Thomas Jefferson recognized in the Declaration of Independence.
We can disagree without becoming disagreeable. We can debate without becoming argumentative. We can be zealous advocates without becoming adversarial. We can espouse a contrary viewpoint without becoming the enemy. We can defend our perspective without becoming personally offensive. We can confront a difference of opinion without becoming confrontational.
Ruth was the living embodiment of every single one of those truths. Of course, that shouldn’t come as a surprise to anyone — after all, it’s impossible to spell “truth” without “Ruth.”
As always, It would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Floyd J. Siegal