Shawn Hubler

Supreme Court justice shows how to really pay our respects

The American flag flies at half-staff in front of the Supreme Court building in Washington, D.C., after Justice Antonin Scalia’s unexpected death at age 79.
The American flag flies at half-staff in front of the Supreme Court building in Washington, D.C., after Justice Antonin Scalia’s unexpected death at age 79. Bloomberg

The flags are at half-staff, and black wool crepe drapes the mahogany bench and the doors to the courtroom. The Great Hall awaits the body of the late U.S. Supreme Court Justice Antonin Scalia, which will lie in repose Friday before being moved to the Basilica of the National Shrine of the Immaculate Conception for a Saturday funeral Mass.

The spectacle is fitting, given Scalia’s contribution. It is also ironic, given the mudfest that has accompanied his passing.

The sheets weren’t off the justice’s deathbed when GOP candidates for the White House descended into full-on name-calling in their debate in South Carolina, and Senate Republicans announced that no Supreme Court nominee of President Barack Obama would be allowed to replace Scalia, never mind the Constitution.

Have you noticed how the pomp and pageantry of pseudo-respect have risen in inverse proportion to our actual respect for institutions? Last year, a Gallup Poll found that only 32 percent of Americans had confidence in the Supreme Court, a drop of 12 points from the historical average.

The fall from grace was right there with the presidency, down 10 points to 33 percent, though substantially less precipitous than the decline of faith in Congress. The legislative branch had the confidence of only 8 percent of the nation, a 16-point plummet. Never overestimate the power of contempt.

It’s not easy to locate the human dignity in such a backdrop. Maybe that’s why, for a long moment this week, the nation paused to acknowledge the one tender aspect of Scalia’s passing, the moving tribute to him from Justice Ruth Bader Ginsburg, his ideological opposite and great friend.

“From our years together at the D.C. Circuit,” the 82-year-old Ginsburg wrote Sunday, “we were best buddies.” By all accounts, of course, that was an understatement.

Scalia and Ginsburg were, until his death at 79, a novelty of this polarized and uncivil moment, leading voices on the right and left who, incredibly, liked each other.

He backed the death penalty and an individual right to bear arms; she didn’t. She ruled for same-sex marriage and the right to abortion; he didn’t. They were on opposite sides in more than 90 percent of the most contentious cases, the ones decided by 5-4 margins.

And yet, unlike almost every other American, cleaving to their own end of the political spectrum, they were frick and frack: They went to the opera together, celebrated holidays together, parasailed together in France and rode elephants together in India.

They ribbed each other: “What’s not to like – except her views on the law?” Scalia joked at a public appearance at George Washington University last year.

And they worried for each other: “I love him, but sometimes I’d like to strangle him,” Ginsburg remarked after Scalia’s inability to tone down his scathing dissents made it clear that he wouldn’t succeed William Rehnquist as chief justice.

Asked years ago which of the two leading male jurists he would want to be stranded with on a desert island, just for the fun of arguing with them, Scalia rejected both and picked Ginsburg. In 2010, when Chief Justice John Roberts announced the death of Ginsburg’s beloved husband, Marty, Scalia sat at the bench and openly wiped away tears.

There seems something almost superhuman these days in that kind of cross-party friendship. Partisan antipathy in the American public is deeper than at any time in the last two decades.

Another poll, done in 2014 by the Pew Research Center, found that 27 percent of Democrats and 36 percent of Republicans not only view the other party unfavorably but see it as a threat to the nation’s well-being. We can scarcely speak to each other, let alone agree to disagree.

And differences on the Supreme Court aren’t just debating exercises over whether your beer tastes better or is less filling. Looser gun laws mean greater chances that you or someone you love could be killed or hurt by a firearm. Looser campaign finance laws make it easier for rich people to corrupt elections.

When we lived in Orange County, the fight over same-sex marriage split our block bitterly, neighbor from neighbor. I’ll never forget the stunned look of betrayal on the faces of the gay couple across the street when they found out in 2008 that the mom on the corner had joined the Mormon church and was now a Proposition 8 backer. “We’d thought she was so nice!” they kept repeating.

And before that, when we lived in the Bay Area, I ruined an entire evening with a snide joke I made to new acquaintances about the ruling that had handed President George W. Bush the 2000 election. Who knew San Francisco had Republicans? I had simply assumed they were all Al Gore backers. Those nice people never socialized with us again.

In an interview last year, Ginsburg attributed her friendship with Scalia to their ability to let bygones be bygones. “We could not do the job that the Constitution gives to us if we didn’t, to use one of Justice Scalia’s favorite expressions, ‘get over it,’ ” she said.

But I can’t believe that was all there was to it. And in fact she went on to hint at another, I think, more interesting motive.

“We revere the Constitution and the court,” she told the audience, “and we want to make sure that when we leave it, it will be in as good shape as it was when we joined the court.”

In other words, they also maintained their friendship for the sake of the institution, a standard that this week sounds almost quaint. What has happened to our politics, debased as they have become by fear and polarization, that more of us can’t say the same?