If they were still alive and working together, Antonin Scalia and Ruth Bader Ginsburg — the legendary Supreme Court justices who jousted over the law while remaining the best of friends —would have celebrated their birthdays last week. Scalia was born on March 11, Ginsburg on the 15th a year earlier – and the pair would have undoubtedly feted one another in fitting style.
Indeed, a rare photograph taken in March 2008 in the court’s dark-paneled Natalie Cornell Rehnquist Dining Room captured the “Odd Couple” posed beside a pair of birthday cakes.
The bond between the legal giants — who served together on the bench for nearly 23 terms — has become, in the social-media era that outlasted them, an all-purpose metaphor for the value of civility in disagreement. Today, their unlikely affection is frequently invoked in the hope that a measure of maturity might yet be restored to America’s public discourse, now marked by unrelenting rancor and deeply dispiriting.
Many have opined on the meaning of Scalia-Ginsburg, but none with greater authority than Eugene and Christopher Scalia, the justice’s oldest and youngest sons, respectively. The former is a prominent attorney and one-time Cabinet officer; the latter, a scholar at American Enterprise Institute and a former university professor. Both published essays on their father’s famous friendship soon after Ginsburg died in September 2020, four years after Scalia’s passing.
“What we can learn from the justices—beyond how to be a friend—is how to welcome debate and differences,” Secretary Scalia wrote. “Political disagreement need not turn friends into enemies,” agreed Christopher, two days later. “My father and Justice Ginsburg mastered this balance.”
Yet both of Nino’s sons also noted a factor often forgotten: that the friendship was born of work. Scalia and Ginsburg first met at an academic conference in the late 1970s. Their friendship blossomed when Scalia joined Ginsburg, in October 1982, as a judge on the Court of Appeals for the District of Columbia Circuit: one rung below the Marble Temple, often described as the second most powerful court in America. “They enjoyed working together,” Christopher wrote in his 2020 essay.
Nowhere is this recorded in greater detail than in the 223 boxes of Ginsburg’s papers at the Library of Congress. The handwritten notes, memoranda, correspondence and draft opinions deposited in RBG’s case files for the period she and Scalia served on the appellate bench, 1982-86, include countless exchanges between them.
They were far and away the most affectionate between any two judges on the D.C. Circuit at the time — perhaps on any court at any time. Brilliant expositions of law and logic, unimpeachable evidence of friendship in embryo, the RBG-Nino Papers — unpublished until now — reveal their intellects, honesty, religiosity, filial devotion, and ethnicity, their shared loves of languages, criticism, debate, and wit.
Early on Ginsburg exhibited an almost maternal attitude toward Scalia. Repeatedly, needlessly, she expressed concern about the weight of his workload. Her summary of a conference among the judges in April 1983, six months after Scalia joined the bench, stated: “RBG offered to trade if AS finds himself too loaded to manage the case.” Three months later, in a separate matter, she wrote to him privately: “Sorry about the headache this case is giving you.”
Within a year, RBG was sending Nino playful notes. She kvelled over his draft in Association of Data Processing v. Board of Governors (1984), in which Scalia limned two sections of the Administrative Procedure Act that authorized judicial review of agency decisions:
“Three puntas after this for any judge who writes that, under APA, the ‘substantial evidence’ rein is tighter than the ‘arbitrary and capricious’ one….Also marked, proofreading errors spotted at the swimming pool. R.B.G.”
Then she wondered: Would Scalia get her puntas reference? What if he didn’t? So RBG re-sent the memo to Nino’s chambers, this time annotated with her scribbled asterisk and explanation. It was a reference to 1914’s “Lafcadio’s Adventures,” the André Gide novel whose protagonist assigned “puntas” as a punishment for those who allowed themselves to be outdone: just the kind of literary arcana Scalia loved.
Nino, for his part, heaped praise on RBG so high it was probably unknown even to his brightest students and clerks, and possibly even to his children.
With Ruth, he could let up in argument and let down his hair.
When she encouraged him, in Weil v. Markowitz (1985), to “change your vote on the first question [so] we can be unanimous,” he capitulated the next day, scribbling on her memo: “Let’s be unanimous. AS.”
He once apologized for his delay in delivering a difficult opinion, “sloth that I am.” He could even admit error: “I am grateful for your insight regarding the impropriety of the agency’s reliance upon § 402(h),” he wrote to RBG and Judge Patricia Wald in Eastern Carolina Broadcasting Co. v. FCC (1985), a case that reaffirmed the principle of judicial deference to federal agency decision-making. “I had not seen that clearly, and you are unquestionably correct.”
Scalia’s trust in his new friend was total. In the 1985 price-gouging case Maryland People’s Counsel v. Federal Energy Regulatory Commission (FERC), he invested extraordinary authority in RBG: “She has my proxy . . . I will be content to have her cast my vote on the basis of her judgment as to whether the assurances from [the appellant] are adequate.”
When Scalia took his seat on the Supreme Court in September 1986, Ginsburg quipped to Wald that Nino had left them for the “higher region.” Ginsburg inherited one of Scalia’s “left-behinds,” another dreaded FERC case: the driest that the field of administrative law, already known for its dryness, could possibly deliver, focused on the intricacies of energy regulation.
“To Justice Scalia,” she wrote in her neat, understated cursive in a January 1987 note attaching her opinion. “Nevermore shall I have cause to think of you in the dismal context of a FERC-y case! . . . Regards, Ruth.”
James Rosen is chief White House correspondent for Newsmax and the author of “Scalia: Rise to Greatness, 1936-1986,” from which this essay is adapted.
