A Supreme Model for Our Times Based on Civility and Respect by David Reel

Given the current state of uncivil discourse in politics today, one is reminded of a quote attributed to President Truman –“If you want a friend in Washington … get a dog.” No matter who said it, it is especially appropriate in today’s political environment. It is an environment characterized by deep divisions, vitriolic rhetoric, polarization, and demonizing opponents. This is especially the case with regard to rulings rendered on social issues by the U.S. Supreme Court.

There was a time when two Court Justices with opposite views of the world — Ruth Bader Ginsberg and Antione Scalia — regularly agreed to disagree without being disagreeable.

Ginsberg was a hero for progressives based on her unwavering “Living Constitution” approach of constitutional interpretation. Her written opinions reflected her core belief that that the Constitution should be interpreted based on the context of current times, even if such interpretation is different from the original interpretations of the document.

Scalia was a hero for conservatives based on his unwavering “Originalist” approach of constitutional interpretation. His written opinions reflected his core belief that all statements in the Constitution must be interpreted based on the original understanding, and that understanding can only be changed by amending the actual wording of the constitution.

Ginsberg and Scalia first served together as judges on the U.S. Court of Appeals for the District of Columbia Circuit. While serving there, they developed a high level of mutual respect that transcended their different approaches on court decisions. While there, they also developed a deep and abiding friendship that led to vacationing together, attending operas together, shopping for antiques together and having an annual New Years Eve dinner together with their spouses and children. They were traditions they maintained while serving on the Supreme Court.

Nothing reinforced those high levels of mutual respect and regard for each other more than when President Clinton was making his only Supreme Court nomination after Justice White announced his retirement. Initially, Clinton did not give serious consideration to Ginsberg. His two top prospects were Harvard Law professor Lawrence Tribe and New York Governor Mario Cuomo. Before making a final decision, Clinton reportedly asked Scalia (who was already serving on the Supreme Court) — “If you were stranded on a desert island with your new court colleague, whom would you prefer, Larry Tribe or Mario Cuomo?” Without hesitation, Scalia replied “Ruth Bader Ginsburg.”

Clinton did nominate her, and she was confirmed quickly and easily by the Senate. As a result, Scalia and Ginsberg were serving together again and once again agreed to disagree without being disagreeable.

The best example of that occurred in 1996 when the Chief Justice chose Ginsburg to write her first majority opinion as a Supreme Court Justice. It was an opinion striking down a male-only admission policy at the Virginia Military Institute. Prior to Ginsberg finalizing her majority opinion, she sent a working draft to Scalia for his review and thoughts. Even though Scalia strongly disagreed with her views on this issue (and filed the only dissent on her final majority opinion); Scalia replied to her working draft with constructive criticism. Ginsberg later observed that his input allowed her to fine tune her thoughts and make her opinion stronger. She also once said, “I disagree with most of what he said, but I loved the way he said it.” Scalia returned the compliment by saying, “Call us the odd couple. She’s a very nice person. What’s not to like? Except her views on the law.”

Such mutual admiration did not mean they compromised on their core principles.

They rarely agreed on decisions that resulted in close votes at the Supreme Court.

Their mutual respect and deep friendship were not for show or media attention. It was then, and is today, an inspiration and a model for us regardless of whether we view Ginsberg as an icon or Scalia as an icon. As a society, we desperately need a renewed commitment to civility in our world, even if it does not result in or depend upon friendship. Such a commitment could and should lead to a society where we acknowledge that those with whom we disagree are not our enemies. That includes elected officials at all levels of government, appointed officials at all levels of government, candidates for elective office at all levels of government, and fellow Americans. We can stand firm on maintaining our principles AND engage in robust, civil and mutually respectful dialogue on public policy issues.

David Reel is a public affairs/public relations consultant who serves as a trusted advisor on strategy, advocacy, and media matters who resides in Easton.