November 28, 2016

Earlier this year, when Supreme Court Justice Antonin Scalia died, my first reaction was Yes! The right-wing ideologue, Constitutional originalist, and rhetorical sophist was dead. More than his mute partner in regressive reasoning, Clarence Thomas, Scalia was the left’s wicked witch. And whether I was celebrating a bucket of water or a heart attack melting this villain from the face of the earth, I was celebrating. After all, this is the man who wrote, in his 2003 dissent from the Lawrence v. Texas decision proclaiming laws prohibiting gay sex to be unconstitutional,

“Today’s opinion is the product of a Court…that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists…It is clear from this that the Court has taken sides in the culture war…Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” …So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal…Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means….But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.”

Twelve years later, Scalia of course again dissented, this time in Obergefell v. Hodges (the case in which the Supreme Court upheld gay marriage), even though “normal democratic means” and public opinion had both manifestly demonstrated that the “homosexual agenda” was now mainstream.

So I was happy when someone died. Now, I thought, finally we’ll have a Court that will be stacked to support a progressive future, not a regressive, repressive worship of the past. That was before the Republican stonewall and Trump’s election. But I’m not going to tackle those two monstrosities here. I’m writing today about how wrong I was to be happy that someone died, how f***ed-up it is that our political and ideological divides make hate seem so normal, so moral.

If Antonin Scalia was the villain of the Left, who is our hero on the Court? That’s right: RBG, our Glinda. Ruth Bader Ginsburg is everything Justice Scalia was not: a liberal living-Constitution advocate, a woman, a fighter for the rights of every underdog. God, I thought, if I’m celebrating Justice Scalia’s passing, she must be dancing around chambers in her gown. Goodbye to her seemingly endless task of having to defend social justice in dissent. Think about how many majority opinions she can now be part of! She must be so pumped.

Wrong. She was devastated. Antonin Scalia, “Nino” to her, was her best friend on the Court. They traveled together, they talked long hours, they even joined forces to take the judiciary onto the stage in the opera, Scalia/Ginsburg. Justice Ginsburg spoke at Scalia’s memorial service and said,

“[W]henever I wrote for the Court and received a Scalia dissent, the majority opinion ultimately released [was] improved…Justice Scalia…gave me just the stimulation I needed to strengthen the Court’s decision….[The] day the Court decided Bush v. Gore,…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…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.’…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….’ I will miss the challenges and the laughter that Justice Scalia provoked,…the roses he brought me on my birthday…How blessed I was to have a working colleague and dear friend of such captivating brilliance, high spirits, and quick wit….[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.”

It is so easy to demonize people on the other side. The less valid they seem as a jurist, as a thinker, as a voter, or as a human being, the easier it is for us to dismiss and demean them. If we are going to bridge the various divides tearing this country apart, we need to learn the lessons of RBG’s respect for her colleague, Scalia’s distinction between people and ideas, and the commitment both Justices had to the institutions that have held the American republic together for almost 230 years.

Now let’s hope against hope that whoever fills Justice Scalia’s still-empty seat respects the Court—and his fellow Justices—as much as his predecessor.