“Scalia/Ginsburg Clerk Conversations” Discusses Two Era-Defining Justices
The American Constitution Society and Federalist Society hosted “Scalia/Ginsburg Clerk Conversations” on Wednesday, February 28. At the event, Professors Scott Ballenger ’96 and Rachel Bayefsky discussed their exeriences clerking on the Supreme Court for Justices Antonin Scalia and Ruth Bader Ginsburg, respectively. The event was held in collaboration with the Charlottesville Opera, which will present the opera Scalia/Ginsburg on March 28 and 29 at Grisham Hall at St. Anne’s-Belfield.
Professor Emeritus A.E. Dick Howard ’61 moderated the event and started by discussing his time clerking for the Warren Court. He didn’t consider clerking until he was already practicing, and he applied directly to each of the nine justices, eventually clerking for his first choice, Justice Hugo Black. The Warren Court, Professor Howard said, didn’t care much about grand legal theories; instead, they set out to “do the right thing.” As a result, they produced influential decisions but also provoked criticism, creating the jurisprudential landscape Scalia and Ginsburg entered.
Of course, Scalia, who taught at the Law School before entering public service, is remembered as a conservative who advocated textualism and originalism, and Ginsburg became a liberal icon. The two Justices also had nearly opposite personalities. Scalia was the most “vibrantly alive person you will have ever come across,” according to Professor Ballenger, and he enjoyed a passionate argument. Ginsburg was quiet, formal, and “honestly a nerdy person,” according to Professor Bayefsky.
The Justices also diverged in the way they went about their work. Professor Ballenger observed that because Scalia wanted to limit discretion, he tended to create rules that would apply down the line. After ten years on the Court, that made it easy for his clerks to anticipate how he would address cases. Scalia worked nine-to-five and enforced a two-page limit on his clerk’s bench memos. Ginsburg “saw a lot more nuance” and grappled with every case, often working late into the night.
In spite of their differences, the Justices were famously close friends. Professor Ballenger suggested several reasons for their friendship. They both liked “good wine, good food, good music,” he said, famously including opera. They also spent a great deal of time together in a very private, “monastic” environment and would have recognized each other as brilliant individuals. Additionally, he noted that everything was much less partisan when they began their time on the Court—“politics has sort of become religion” today, but that wasn’t true at the time.
The discussion also turned to the Justices’ later careers and legacies. Professor Ballenger said that Scalia’s legacy is probably mixed. He “won the debate” on textualism, and his opposition to unenumerated rights carried the day on abortion, though probably not on gay marriage. But some of his views, such as on religious liberties and his support for Chevron deference to administrative agencies, have been totally rejected by legal conservatives today. He also thought that Scalia’s opinions got “meaner and nastier” toward the end, likely because he appeared to be losing on social issues such as homosexuality. On the other hand, Professor Bayefsky noted Ginsburg’s surprising fame as a liberal icon—the “Notorious R.B.G.”—and speculated that she enjoyed the status. Professor Bayefsky pointed out that as an appellate judge, Ginsburg was seen as a moderate, and said that her later reputation probably reflected changes in the judiciary as a whole. She also thought Professor Howard’s prediction that Ginsburg may be remembered more as a great litigator arguing for women’s rights than as a justice is plausible. Overall, it’s easy to see the two Justices’ careers as ironic: the energetic and argumentative Scalia becoming embittered and the quiet and scholarly Ginsburg gaining celebrity status.
Professor Howard ended the panel by encouraging students to consider the rich biographies that justices bring to the cases we read. For example, he observed that many of the Warren Court justices had previously held elected office, whereas no one has on the current Court. He argued that this lack of experience is a deficiency.
Scalia/Ginsburg is a one-hour comic opera “inspired by the opinions of U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia and by the ‘operatic precedent’ of Händel, Mozart, Rossini, Bellini, Verdi, Offenbach, Bizet, Sullivan, Puccini, Strauss, et al.” It was written by Derrick Wang and was first performed at the Supreme Court in 2013.
