Though all the justices typically agree in about three-fourths of cases involving issues like bankruptcy, patents or legal procedure, Scalia and Ginsburg regularly are on opposite sides in matters that divide the nation — including abortion, affirmative action, campaign funding, the death penalty, the environment, gay rights and gun rights.
In summer 2012, when the court ended with a close split on President Obama’s healthcare law and Arizona’s strict immigration law, Scalia and Ginsburg had agreed in 56% of the term’s cases — the lowest rate of any two justices. When only the 5-4 decisions were included, they agreed just 7% of the time.
Ginsburg believes the Constitution’s guarantee of “equal protection” of the laws must evolve with society. In the 1970s, that meant an end to gender discrimination. And this term, she is almost certain to vote in favor of an equal right to marry for gay and lesbian couples
Scalia insists the Constitution should be interpreted the way its original writers would have understood it. By that standard, he says, no one would say the 14th Amendment in 1868 was adopted to forbid discrimination against gays.
“They have a very different vision of the Constitution and its protection for liberty and equality,” said Duke law professor Neil Siegel. “If Justice Scalia had his way, he would go a long way to destroying her life’s work in sexual equality, abortion, pregnancy discrimination.”
When Ginsburg in 1996 wrote her first major opinion and ruled that the Virginia Military Institute and other all-male public colleges must open their doors to qualified women, Scalia wrote the lone dissent.
And even today, he insists he was right. He told the George Washington University audience that the military service academies have lost their luster as training grounds for “warriors” now that women are enrolled.
“That argument won’t work, Nino,” Ginsburg said, noting that most VMI graduates did not join the military.
Later, when Ginsburg insisted the court’s constitutional decisions should reflect changing social attitudes, Scalia objected. “We’re not going to agree on this, Ruth,” he said.
After the court adjourns for the summer, the pair’s unusual friendship will be on display in a comic opera called “Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportions.” Its composer, Derrick Wang, said he discovered a truly operatic character when he read Scalia’s dissents as a law student at the University of Maryland.
“Whenever I encountered the phrase — ‘Scalia J., dissenting’ — I would hear in my head a rage aria. That’s a type of aria where the character is incensed and expresses anger. It’s a fitting way to introduce Justice Scalia as passionate, disgruntled and rooted in the 18th century,” Wang said.
The opera will premiere July 11 at the Castleton Festival in northern Virginia. It opens with the Scalia character singing, “The justices are blind. The Constitution says nothing about this!” But when he is imprisoned for “excessive dissenting,” help arrives in the form of Ginsburg — breaking through a glass ceiling to rescue him.
Ginsburg plans to attend the premiere. It is “for me a dream come true. If I could choose the talent I would most like to have, it would be a glorious voice. I would be a great diva, perhaps Renata Tebaldi or Beverly Sills,” she wrote in a foreword to the opera. “But my grade school music teacher, with brutal honesty, rated me a sparrow, not a robin.”
As usual, Scalia sees it a bit differently. “I could have been a contendah — for a divus, or whatever a male diva is called,” he wrote in response. He said he has sung in choral groups and once “joined the two tenors from the Washington Opera singing various songs at the piano.... I suppose, however, it would be too much to expect the author of ‘Scalia/Ginsburg’ to allow me to play (sing) myself. Even so, it may be a good show.”