The relationship between Justice Scalia and RBG
Lies in state in the Capitol today, the first woman ever given that honor in the first Supreme Court justice since William Howard Taft and he'd also been the president. Justice. Ginsburg's casket was at the court for two days for people to pay their respects, including President Trump, and the first lady booed when they got there. The president has had nice things to say about Justice Ginsburg since her death, you may agree. You may not disagree with her, but he was an inspiration to a tremendous number of people. I say all Americans, and now, he says, it's his job to fill that seat on the court. I think it's very important that we have nine justices. And I think the system is going to go very quickly. The president plans to announce his nominee tomorrow. Joe Biden, and a lot of other Democrats say he should fill that seat if he wins the election in light of Republicans blocking President Obama from filling a seat in an election year, the seat President Obama would have filled incident. Scalia's went to Neil Gorsuch instead of Merrick Garland. For all the fighting. There's been over Justices Scalia and Ginsburg in life. They were very good friends. People always find it surprising that they were such good friends, Christopher Scully's the Eighth of Incident. Scalia's nine Children. There's a new collection published of his father's writing called The Essential Scalia. Their friendship went back. Really to the early eighties, when they were judges together on the D C circuit Court of Appeals, which is kind of like the second most important court in the country, and they they had a good working relationship that which really started back then they would help each other revised their drafts and their opinions. Apparently, the other judges on that court really didn't like getting advice about their writing and how to improve the clarity of what they're writing in the force of their arguments. But Justice Ginsburg liked getting and receiving that kind of advice, and so did my dad, and they formed what he called a mutual improvement society during their time on the court there. And And they had other things in common. They were they had similar backgrounds and that they were both New Yorkers grew up in New York around the same time, different boroughs but around the same time and shared a love of opera. Good wine eating good food. Both of their thousands were excellent cooks. Marty Ginsburg, in particular, is kind of a legendary cook, who would put together wonderful meals every New Year's Eve and they would celebrate New Year's Every every year is well. So you know, despite all their differences, and all the many things they disagreed about, including a number of opinions in this collection. They had a wonderful friendship were able to kind of focus on the things they had in common. Your dad in Justice Ginsburg, I don't know the statistics on how often they concurred or dissented on cases. But I imagine that they disagreed. Maybe as much as any two Recent justices have my right. Yeah, I think that that sounds right. I don't know the statistics, either. I think people would be surprised by how often they agreed with each other. But on the real hot button cultural cases, they often disagreed one of her most important, most famous opinions. Was Virginia Military Institute case from the mid nineties. And my My father wrote a dissent to that case, which is in this collection, the essentials, Scalia and it was hey actually gave her the draft of that descent a little bit earlier than one usually does just so that she would have more time to kind of Deal with it and grapple grapple with his arguments. And and, yeah, some of his most staying the sense we're in response to opinions. She didn't necessarily right but but joined, And I think that's probably true. Vice versa. Tell us very about the big bouquet of roses she got from him. My dad would get her roses for her birthday and I guess the Ah, I think the last time he did that. So the year before he died, one of the editors of the Essential Scalia Judge Jeffrey Sutton was visiting my father in chambers on on Justice Ginsburg's birthday. And he saw that my dad had two dozen roses for Justice Ginsburg and Judge Sutton started teasing Dad saying, You know, I haven't even gotten my wife two dozen roses over the course of our entire marriage. Why would you do this? And besides, When was the last time she cited with you on a really important 54 decision? You know, he's poking fun, You know, not not really being serious, but My dad gave a serious answer, which was some things are more important than votes. As I think I just kind of a great encapsulation of their of their relationship of their friendship they had they had Very different opinions of politics and of their jobs as a zoo judges and of what laws, men and with the Constitution, man. But, uh, how they voted wasn't the biggest factor in their relationship. It wasn't that those opinions didn't matter. And it wasn't that they compromised their beliefs for each other. But they didn't let those very strongly held beliefs undermine their very deep friendship collection of Supreme Court. Justice Antonin Scalia is writing sort of like a greatest hits album. It's opinions and other writing about the law and the Constitution again called the Essential Scalia. This is really just a collection of his greatest Legal writings, opinions, speeches, essays and they collected together give a really good sense of white. Exactly. He was such a significant Supreme Court justice on it. They're having in one collection really makes it tangible for anybody understand that we'll just as a legal reference work. You've got to think it's going to end up being bought by or four A lot of lawyers and judges know absolutely in law students. I hope you know that he he wrote. Clearly, he wrote, Hey, had so many memorable phrases and his opinions. His logic was so strong and convincing that people just kind of they often went to his opinions first. And so it's good for people to kind of have that as a resource to keep going to those opinions. Even you know, even after His passing is also besides the legal community. It's also like you said. It's very readable, even for non lawyers for just a general interest audience who might, but he was just simply a very, very good writer. Yeah, it's exactly right. He hey, wrote. For? I guess we would now call it out of transparency. You know, Even when he was writing Supreme court opinions, he understood that they should be understood themselves by everyday citizens, not just legal eagles and people with legal degrees. He kind of a recurring theme of his opinions. Is that people should know what the court courts are doing and people that the court should not usurp power that properly belongs to the people. And I think that kind of reverence for the Democratic order is is kind of manifest in his in the clarity of his writing a lot of times if he had a vote, a personal vote on how a case would turn out it may or may not a lot of times did a line with how he ruled, But sometimes it probably wouldn't have right. Yeah, I think that's true. And that's especially true in one example is when he sided with the majority in a flag burning case. The majority ruled that, um, it was constitutional sorry from burning the flag was constitutionally protected speech under the First Amendment so prohibiting that in the state law was unconstitutional. My father often explained that he did not like Three idea of flag burning. If he were a king, he would ban it. But clearly to him falls under the protection of the protection of the First Amendment, and a lot of conservatives to this day do not like that opinion. My father thought the Constitution was clear about that. There are many examples in this collection, the essential Scalia of instances in which he stands up for the rights of the accused defendant's rights. There's a famous case in here where search and seizure cases as well there a couple of those in here where he just thought, you know the police do not have authority, for example, to use Scans of houses, Tio identify Marilou who was growing marijuana without that was an illegal search examples like that s so if he could just pass a law That was one thing, but actually sorry, there couldn't be even be lost for that because they so clearly violated the Constitution, even though obviously he wouldn't have approved of those particular actions. Sure. Hey, was also notice the talker during oral arguments. He has asked a lot of questions and clearly sometimes, though, they weren't really questions. They were just arguments he was making to his fellow justices. Do you think he went into most cases with his mind made up based on the briefs, and the president is a bad thing, but not usually the case. I think that the justices, you know, I can't say for certain, but my hunch is that they often have to go in with a pretty good idea, but I think for the most part, they do ask questions, not just Not just to be heard or not just to make arguments, but because they want to really engage with the arguments that the lawyers are making in the forward to this collection, Justice Kegan first of all, very happy that she agreed to write this beautiful forward, But she she says that she says just that, you know, Dad would ask these questions because he loved argument and kind of loved mixing it up. It wasn't just kind of wasn't just for show though he did. I think you're right. He was very kind of an engaging speaker and There was some study years ago that that found he was. He was the funniest justice by the standards of he drew the most laughter from the courtroom during oral arguments, which obviously isn't the most important thing to do, but just shows how much he he enjoyed that process that love for debate. Did it? Was it a two way street was? Was he persuadable? Absolutely. That's something justice Kagan mentions in her forward. She doesn't say when she ever changed his mind, but says They change each other's minds at times. Well, Christopher Scalia, It was great to talk, Teo, The book is called The Essential Scalia on the Constitution, the courts and the rule of law. Chris Scalia. Really good to talk to you. Thanks so much, Thanks so much appreciate your time.