6
Remembering Justice Scalia
JUSTICE GINSBURG delivered the following remarks at a memorial service held for her close friend “Nino” after his sudden and unexpected death on February 13, 2016. Although very different in temperament, judicial outlook, and political beliefs, the two developed a close friendship, beginning in the 1980s during their service together as judges on the U.S. Court of Appeals for the D.C. Circuit. As Justice Scalia told us in an interview in 2007, “We are two people who are quite different in their core beliefs, but who respect each other’s character and ability. There is nobody else I spend every New Year’s Eve with.” 1
Justice Scalia, who had a talent for making the more sober Justice Ginsburg laugh, also was especially struck when he witnessed her tears. “A lot of people,” he said, “have this notion that she is a sourpuss, and she is not. She’s a pussycat. She’s a really nice person. I’ll tell you, [this] shows you how tenderhearted—when we were in India together, we went to Agra to see the Taj Mahal and there is a doorway where you first get sight of it, you know the story of it, this guy built it for his deceased wife. She stood there, when we got there, in that doorway—tears were running down her cheek. That emotional. I mean, I was amazed.” 2
Remembrances of a Treasured Colleague
Remarks at Memorial Service for Justice Antonin ScaliaI
Mayflower Hotel, Washington, D.C.
March 1, 2016
The script of John Strand’s play, The Originalist, opens with two quotations:
1) “[The] Fixed-Meaning Canon: Words must be given the meaning they had when the [legal] text was adopted.”
2) “Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea. . . .”1
The first quotation is attributed to Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts;2 the second, to Chief Justice John Marshall.3 Justice Scalia would no doubt stand by the words he and co-author Garner wrote. My view accords with the great Chief Justice’s, and I believe Justice Scalia would agree that Marshall had a point. I leave to others discussion of Justice Scalia’s provocative jurisprudence and will speak here, instead, of our enduring friendship from the years we served together on the U.S. Court of Appeals for the D.C. Circuit through the nearly twenty-three years we were two of nine Justices on the U.S. Supreme Court.
Among fond memories of Justice Scalia, an early June morning, 1996. I was about to leave the Court to attend the Second Circuit Judicial Conference at Lake George. Justice Scalia entered, opinion draft in hand. Tossing many pages onto my desk, he said: “Ruth, this is the penultimate draft of my dissent in the VMI case. It’s not yet in shape to circulate to the Court, but the end of the Term is approaching, and I want to give you as much time as I can to answer it.”
On the plane to Albany, I read the dissent. It was a zinger, of the “this wolf comes as a wolf” genre. It took me to task on things large and small. Among the disdainful footnotes: “The Court refers to the University of Virginia at Charlottesville. There is no University of Virginia at Charlottesville, there is only the University of Virginia.” . . . Thinking about fitting responses consumed my weekend, but I was glad to have the extra days to adjust the Court’s opinion. My final draft was more persuasive thanks to Justice Scalia’s searing criticism. Indeed, whenever I wrote for the Court and received a Scalia dissent, the majority opinion ultimately released improved on my initial circulation. Justice Scalia homed in on the soft spots, and gave me just the stimulation I needed to strengthen the Court’s decision.
Another indelible memory, the day the Court decided Bush v. Gore, December 12, 2000, I was in chambers, exhausted after the marathon: review granted Saturday, briefs filed Sunday, oral argument Monday, opinions completed and released Tuesday. No surprise, Justice Scalia and I were on opposite sides. The Court did the right thing, he had no doubt. I disagreed and explained why in a dissenting opinion. Around 9:00 p.m. the telephone, my direct line, rang. It was Justice Scalia. He didn’t say “get over it.” Instead, he asked, “Ruth, why are you still at the Court? Go home and take a hot bath.” Good advice I promptly followed.
Among my favorite Scalia stories, when President Clinton was mulling over his first nomination to the Supreme Court, Justice Scalia was asked a question to this effect: “If you were stranded on a desert island with your new Court colleague, who would you prefer, Larry Tribe or Mario Cuomo?” Scalia answered quickly and distinctly: “Ruth Bader Ginsburg.” Within days, the president chose me.
Among Justice Scalia’s many talents, he was a discerning shopper. When we were in Agra together in 1994 for a judicial exchange with members of India’s Supreme Court, our driver took us to his friend’s carpet shop. One rug after another was tossed onto the floor, leaving me without a clue which to choose. Justice Scalia pointed to one he thought his wife, Maureen, would like for their beach house in North Carolina. I picked the same design, in a different color. It has worn very well.
I recall, too, a dark day for me, confined in a hospital in Heraklion, Crete, in the summer of 1999, the beginning of my long bout with colorectal cancer. What brought me to Crete? Justice Scalia’s recommendation that I follow him as a teacher in Tulane Law School’s summer program there. The first outside call I received was from Justice Scalia. “Ruth,” he said, “I am responsible for your days in Crete, so you must get well. Is there anything I can do to help?”
Once asked how we could be friends, given our disagreement on lots of things, Justice Scalia answered: “I attack ideas. I don’t attack people. Some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job. You don’t want to be a judge. At least not a judge on a multi-member panel.” Example in point, from his first days on the Court, Justice Scalia had great affection for Justice Brennan, as Justice Brennan was drawn to him.
I will miss the challenges and the laughter Justice Scalia provoked, his pungent, eminently quotable opinions, so clearly stated that his words never slipped from the reader’s grasp, the roses he brought me on my birthday, the chance to appear with him once more as supernumeraries at the opera.
In his preface to the libretto of the opera buffo Scalia/Ginsburg, Justice Scalia described as the peak of his days in D.C. an evening in 2009 at the Opera Ball, at the British Ambassador’s Residence, when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. How blessed I was to have a working colleague and dear friend of such captivating brilliance, high spirits, and quick wit. In the words of a duet for tenor Scalia and soprano Ginsburg, we were different, yes, in our interpretation of written texts, yet one in our reverence for the Court and its place in the U.S. system of governance.
Justice Scalia and Justice Ginsburg pose on an elephant in Rajistan during their tour of India in 1994.
Justice Ruth Bader Ginsburg (wearing a white dress and holding a fan on the left) and Justice Antonin Scalia (wearing a blue vest and a wig on the right) photographed during a production of Richard Strauss’s opera Ariadne auf Naxos. The Justices appeared as supernumeraries in the Washington National Opera’s opening night production at the Kennedy Center in Washington, D.C., on January 7, 1994.
* * *
I. These remarks have been edited and updated to include additional thoughts and memories that Justice Ginsburg shared in later tributes about Justice Scalia.
7
The Scalia/Ginsburg Opera
When Derrick Wang’s comic opera Scalia/Ginsburg was reprinted in the Columbia Journal of Law and the Arts, it included prefaces by both Justices. Those prefaces follow, along with excerpts from the opera itself.I
Scalia/Ginsburg:
A (Gentle) Parody of Operatic Proportions
An American comic opera in one act by DERRICK WANG
Libretto by the composer
Inspired by the opinions of U.S
. Supreme Court Justices
RUTH BADER GINSBURG and ANTONIN SCALIA
and by the operatic precedent of
HÄNDEL, MOZART, VERDI, BIZET, SULLIVAN, PUCCINI, STRAUSS, ET AL.II
Preface by Justice Ruth Bader Ginsburg
Scalia/Ginsburg 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 or, in the mezzo range, Marilyn Horne. But my grade school music teacher, with brutal honesty, rated me a sparrow, not a robin. I was told to mouth the words, never to sing them. Even so, I grew up with a passion for opera, though I sing only in the shower, and in my dreams.
One fine day, a young composer, librettist, and pianist named Derrick Wang approached Justice Scalia and me with a request. While studying constitutional law at the University of Maryland Law School, Wang had an operatic idea. The different perspectives of Justices Scalia and Ginsburg on constitutional interpretation, he thought, could be portrayed in song. Wang put his idea to the “will it write” test. He composed a comic opera with an important message brought out in the final duet, “We Are Different, We Are One”—one in our reverence for the Constitution, the U.S. judiciary, and the Court on which we serve.
Would we listen to some excerpts from the opera, Wang asked, and then tell him whether we thought his work worthy of pursuit and performance? Good readers, as you leaf through the libretto, check some of the many footnotes disclosing Wang’s sources, and imagine me a dazzling diva, I think you will understand why, in answer to Wang’s question, I just said, “Yes.”
Preface by Justice Antonin Scalia
While Justice Ginsburg is confident that she has achieved her highest and best use as a Supreme Justice, I, alas, have the nagging doubt that I could have been a contendah—for a divus, or whatever a male diva is called. My father had a good tenor voice, which he trained at the Eastman School of Music. I sang in the Georgetown Glee Club (directed by Washington Post music critic Paul Hume, whom President Truman rewarded with a valuable letter for his review of Margaret’s singing). I have sung in choirs and choral groups much of my life, up to and including my days on the D.C. Circuit. And the utter peak of my otherwise uneventful judicial career was an evening after the Opera Ball at the British Ambassador’s Residence, when I joined two tenors from the Washington Opera singing various songs at the piano—the famous Three Tenors performance.
I suppose, however, that it would be too much to expect the author of Scalia/Ginsburg to allow me to play (sing) myself—especially if Ruth refuses to play (sing) herself. Even so, it may be a good show.
Excerpts from the Opera
LIBRETTO
TIME: The present.
SCENE: A chamber, somewhere in the Supreme Court of the United States. A statue is noticeable.
1. Opening (Orchestra)
2. Aria: “The Justices are blind!” (Scalia)
Rage aria, after Händel et al.: Furioso (ma non castrato).
Opening alarum.1 Enter JUSTICE SCALIA, in a power suit and high Händelian dudgeon.
SCALIA:
This court’s so changeable 2 —
As if it’s never, ever known the law! 3
(Rage aria) 4
The Justices are blind!
How can they possibly spout this—?
The Constitution says absolutely nothing about this,5
This right that they’ve enshrined 6 —
When did the document sprout this?
The Framers wrote and signed
Words that endured7 without this;
The Constitution says absolutely nothing about this!
(Reverent)
We all know well what the Framers did say,
And (with certain amendments) their wording will stay,8
And these words of our Fathers limit us,
For we are unelected,9
And thus, when we interpret them,
Rigor is expected.10
(Bewildered)
Oh, Ruth, can you read? You’re aware of the text,
Yet so proudly you’ve failed to derive its true meaning,11
And never were so few
Rights made so numerous—
It’s almost humorous
What you construe! 12
(With increasing fervor)
Oh, well; oh, well; oh, well; oh, well:
You are the reason I have to rebel! 13
(Aria da capo, with vocal ornamentation)
Though you are all aligned
In your decision to flout this,
The Constitution says absolutely nothing about this—
So, though you have combined,
You would do well not to doubt this:
Since I have not resigned, 14
I will proceed to shout this: 15
“The Constitution says absolutely nothing about this!”
• • •
4. Scene: “Ah, there you are, Nino” . . .
Suddenly, the floor bursts open, and JUSTICE GINSBURG, elegantly attired, rises into the chamber.16
• • •
GINSBURG:
Ah, yes, the “broccoli horrible.” 17
Well, in my view, the situation is of questionable legality:
You are in a tricky spot.
Then again, if you consider the circumstances in their totality,
Unimaginable evil this is not.18
If you might be a bit more flexible—
SCALIA:
“Flexible!”
Like the constant concessions that judges are always demanding.
“Flexible!”
Which goes to show: it is a Constitution you are expanding.19
“Flexible!”
Just another word for “liberal,”20
Always “liberal”. . .
What folly! what folly! 21
5. Duettino: “Always ‘liberal’ ” (Scalia, Ginsburg)
Verdi-Mozart mashup. Tempo: Hey, presto! 22
SCALIA (cont’d):
Always “liberal,” 23 these judges:
How they flit from holding to holding . . .
GINSBURG:
Now, wait a minute, Nino,24
According to what we know,
It isn’t only “liberals” who merit your complaint.
(Aside)
(It’s not like he’s a saint
In matters of restraint.25 )
SCALIA:
How their activism 26 nudges
Us beyond the bounds of the text . . .
GINSBURG:
This Court could very well be
Called “activist” 27 in Shelby, 28
Where Congress’s authority to act was at its height 29 —
Yet Congress lost the fight
To judges on the right. 30
SCALIA:
With their overreaching 31 scolding
And their personal opinions . . .32
GINSBURG:
But it isn’t overreaching
To oppose discrimination—
SCALIA:
Which, according to your preaching, 33
Merits proper extirpation? 34
GINSBURG:
Yes, through proper legislation
That imposes prohibitions—
SCALIA:
Unless we have a situation
Such as race-based admissions! 35
According to your knowledge, 36
An applicant to college
Can have his fate determined by the color of his skin,
But whether that’s a sin
Depends on who gets in.37
Is that not discrimination
Where the state could be the actor? 38
GINSBURG:
But that is just a factor,
A factor of a factor,
A “factor of a factor of a factor of a factor.” 39
And people need protection
Against the vile
infection 40
Of rank discrimination in the form of racial caste,41
Which looks like it could last
Unless we end it fast.
And saying that our future’ll
Be suddenly “race-neutral”
Is acting like an ostrich with its head stuck in the sand—
Because it cannot stand
To see what plagues our land.42
SCALIA:
I agree that it is vital
To make whole the wronged individuals,
But to reinforce entitle-
Ment will only lead to more harm.43
GINSBURG:
What hubris! what hubris! 44
6. Aria & Variations: “You are searching in vain (for a bright-line solution)” (Ginsburg)
After Verdi et al.
GINSBURG (cont’d):
How many times must I tell you,
Dear Mister Justice Scalia:
You’d spare us such pain
If you’d just entertain
This idea . . .
(Then you might relax your rigid posture.)45
(À la Verdi)46
You are searching in vain for a bright-line solution
To a problem that isn’t so easy to solve—
But the beautiful thing about our Constitution
Is that, like our society, it can evolve.
For our Founders, of course, were great men with a vision,
But their culture restricted how far they could go,
So, to us, I believe, they bequeath the decision
To allow certain meanings to flourish—
(With a vocal flourish)
—and grow.47
(A short cadenza, which evolves via scat solo into a jazz waltz)48
Let ’em grow . . .
For the law of the land in that era was grounded
In the notion that justice was just for the few,49
But the Founders’ assumption was wholly unfounded,
So we’ve had to subject it to further review.
So we’re freeing the people we used to hold captive,50
Who deserve to be more than just servants or wives.51
If we hadn’t been willing to be so adaptive,
My Own Words Page 5