Monday, February 22, 2016

Scalia and Ginsburg: The Likeliest of Friendships

by Robert C. Bordone & Sara del Nido Budish


Image: Flickr, Leven Ramishvili, Antonin Scalia and Ruth Bader Ginsburg at the National Press Club in Washington D.C., April 17, 2014, Creative Commons Copyright, Public Domain.

Image: Flickr, Leven Ramishvili, Antonin Scalia and Ruth Bader Ginsburg at the National Press Club in Washington D.C., April 17, 2014, Creative Commons Copyright, Public Domain.

For many years, articles in the media have marveled at the “unlikely friendship” between Justices Scalia and Ginsburg.

Indeed, the pair has been dubbed “the odd couple” (by Justice Scalia himself). With Justice Scalia’s passing, there has been a new wave of commentary touting this friendship and often contrasting it with the partisan rancor that has reached new heights in the wake of the Supreme Court vacancy.

On the one hand, we understand why people see the Scalia/Ginsburg bond as “unlikely.” On the other hand, as we heard and read the stories this week on news outlets ranging from NPR to The New York Times, we couldn’t help but feel sad that everyone was so unconsciously nodding their heads in disbelief about the wonders of the friendship.

After all, if you think about it, should the Justices’ friendship really be so unlikely? Why are we so dazed and confused when we see two people with differing political views but who otherwise have many common interests get along with each other, work effectively, and even develop a deep bond of friendship?

Our national fascination with the Scalia/Ginsburg friendship demonstrates just how dysfunctional we are becoming as a nation and a people, just how deeply politicized we are, and how acrimonious and pervasive this polarization has become. Even more disturbingly, it reveals flawed assumptions that we seem to hold about what makes friendships and relationships work.

Famous for their diverging views on the law, Justices Scalia and Ginsburg in fact shared many attributes and experiences: in addition to their well-known fondness for opera, they were of the same generation, hailed from the same city, attended the same law school (albeit in different years), and were passionate lawyers, law professors, and then judges on the U.S. Court of Appeals for the D.C. Circuit. Perhaps not surprisingly for friends, they also shared a similarly sharp sense of humor.

But for some reason, the fact that they did not share philosophies on constitutional interpretation made their friendship seem remarkable, transcendent, and, indeed, “unlikely.” Given the political atmosphere pervading the rest of Washington (and many cities and communities around the country, the airwaves, and the internet), the salience of their disagreements in the public imagination isn’t particularly surprising. The common refrain goes something like, “they were able to form such a strong friendship despite their differences.”

We would offer a different explanation: First, Justices Scalia and Ginsburg were able to form such a strong friendship because of their many similarities; but, more importantly, they were able to sustain and build that friendship, at least in part, because of their differences.

Disagreements—political, philosophical, or otherwise—are present in every friendship worth its salt. The mark of a genuine friendship isn’t whether you agree about everything, but how you handle the areas where you disagree. All too often, differences in friendships are handled by simply avoiding them. At times, there may be wisdom in this approach. But for a strong friendship, avoidance can create discomfort and awkwardness and can keep us from learning as much as we can about each other, about ourselves, and about the friendship.

And yet, how often do we tell ourselves to avoid talking about politics before a family gathering? How many of us have “unfriended” those who spout views on Facebook that we find distasteful or abhorrent? In this world of proliferating outlets for sharing opinions, it is ironically all too easy to curate our own communities, and surround—indeed, insulate—ourselves with the like-minded. Statistics have captured this cabined mindset; in 2010, one-third of Democrats and nearly half of Republicans reported that they would be “somewhat or very unhappy” if their children married someone of the opposite political party. These are especially troubling figures given that the levels were 20% and 27%, respectively, in 2008.

While it might seem easier or less uncomfortable to limit our associations in the short run, we would argue that this sort of avoidance at the expense of engagement actually does a disservice to our friendships and our own self-actualization. What Justices Scalia and Ginsburg really showed us—and stated publicly—was that disagreement in a friendship makes that friendship stronger, and also makes each individual stronger. Without a spark of friction, our friendships might be stress-free; but they would also be less rich, less challenging, less life-giving than they ought. How much deeper could our relationships be if we dared to disagree?  If we dared to even engage?

To be fair, Justices Scalia and Ginsburg enjoyed an advantage: the Supreme Court and its procedures offered a clear structure within which they could disagree.  By writing their opinions and sharing them, or discussing their views in a thoughtfully organized group setting such as a conference, or by asking pointed questions directed at lawyers, the justices likely were able to create some distance between their substantive quarrels and their personal friendship. As a result, their bond outside of the courtroom was just as strong as the fiery words exchanged in their written opinions.

For most of us, though, we often might feel that if we disagree with our friends over political matters, we have no such safety net. Without a “courtroom” and four solid walls within which we can securely confine our disagreement, we worry that it will pollute and eventually doom the friendship. Many of us arrive at the conclusion that when it comes to family members, spouses, and close friends, we lack the structure, language, and tools to be able to vigorously challenge one another while simultaneously preserving our warm feelings of mutual respect, admiration, and fondness.

For Supreme Court justices, that sort of structure might look like written opinions. But the rest of us can have our own toolbox, too. It might look like a capacity to listen, clarify, understand, paraphrase, inquire, and advocate. These are true skill sets that can be taught and learned, and can improve lives and relationships, transforming what we perceive as unbridgeable fault lines into sources of strength. Along with these skills comes the need for appropriate fora in which to engage in dialogue. Facilitators, who embody the skills and values of thoughtful listening, can help. But so can a joint, mutually spoken commitment to be open, to make time, to perspective-take, to listen, and to share.

Certainly, engaging in conversations around political differences, whether structured formally or informally within the context of a caring friendship, may not result in perfect alignment—or even any movement at all—with respect to political views. But through their example, Justices Scalia and Ginsburg have shown that alignment should not be the goal.

Despite its disheartening exposure of just how deep our country’s political polarization runs, there is something hopeful in the endless media and anecdotal coverage of the Justices’ friendship: the aspiration that lives within the vast majority of each of us to connect with one another, and the hope that we might find bonds across—and, yes, perhaps even strengthened by—traditional divides. Now it is up to us to create our own structure, build our own toolkits, and engage.

Robert C. Bordone ’97 is the Thaddeus R. Beal Clinical Professor and the Founding Director of the HNMCP. Sara del Nido Budish ’13 is a Clinical Fellow at HNMCP.