The play based on Supreme Court Justice Antonin Scalia does not open until next month, and “Scalia/Ginsburg,” the opera celebrating the boisterous conservative and his liberal foil on the court, Ruth Bader Ginsburg, gets its premiere this summer.
So what a Washington audience of about 1,500 people saw Thursday night was more of an episode of “Scalia/Ginsburg: The Reality Show,” a long-running production of deep friendship and intense disagreement that got its start nearly 35 years ago, when the two first became judicial colleagues.
Go ahead and call them the Odd Couple, everyone does. Said Scalia of Ginsburg during an appearance together on Thursday night: “What’s not to like — except her views on the law.”
It’s usually like that at the Supreme Court, too. Scalia gets the laughs; Ginsburg is the always serious one.
But at the appearance, sponsored by the Smithsonian Associates and moderated loosely by NPR legal correspondent Nina Totenberg, Ginsburg held her ground not only as the justices debated their divergent views on the Constitution but also on playing to the crowd.
A sold-out audience at George Washington University’s Lisner Auditorium howled when Ginsburg responded to Totenberg’s observation that the justice nodded off during President Obama’s State of the Union address.
“As I often do,” Ginsburg responded, elaborating: “The audience for the most part is awake, because they’re bobbing up and down, and we sit there — stone-faced, sober judges. But we’re not — at least I wasn’t — 100 percent sober.”
As she has explained before, the justices who attend the address have dinner together first, and Justice Anthony M. Kennedy supplies the wine — “Opus something,” Ginsburg said. This year, she vowed “only sparkling water, stay away from the wine.” But the dinner was so delicious it demanded more.
“That’s the first intelligent thing you’ve done” regarding the State of the Union, interjected Scalia, who stopped attending the “childish spectacle” years ago.
There was photographic evidence of her “dreaming” in The Washington Post, Ginsburg said, and when she arrived home, one of her granddaughters called to say, “Bubbe, you were sleeping again.”
There was much more of the personal for each. When Totenberg asked Scalia how an only child ended up with a brood of nine kids, Scalia said it was not exactly planned. When people would ask his pregnant-again wife, Maureen, whether this was their last child, Scalia said she answered, “No, the previous one was.”
Under Totenberg’s questioning, the 81-year-old Ginsburg recounted her high school days as a shivering baton-twirler in a short skirt whom everyone called “Kiki.” She once knocked out a tooth with her baton, “but the show went on,” Ginsburg said.
Scalia told how he became a hunter after being assigned as the justice responsible for the appeals court covering Texas, Mississippi and Louisiana. He met some “good old boys” very unlike anyone he knew growing up in Queens.
“Now he’s taught Justice [Elena] Kagan,” Ginsburg broke in. “They started with birds, and she’s graduated to [hunting] Bambi.”
But the levity often gave way to a series of moments of That reasoning won’t work, Nino, and That may be your notion, Ruth, as the two debated their conflicting ideological views and whether the Constitution is a living or “dead” document.
“Yeah, I have to get a better word than dead,” Scalia acknowledged. But he said the bottom line has to be an originalist understanding of the document that is not “subject to whimsical change by five of nine votes on the Supreme Court.”
Ginsburg countered that of course the Constitution must expand to cover more than the “white, property-owning men” who once were “we, the people.”
“These grand ideas [of equality] were meant to develop as society develops,” Ginsburg said. “This question of who counts has become ever more inclusive.”
Although they were not asked specifically about the case, those views seem to telegraph how each will vote later this term when the court considers whether the Constitution provides a right for same-sex couples to marry or whether it is up to states to decide the matter.
Scalia said he believes that in a democracy, the majority decides on rights not specifically mentioned in the Constitution. “Don’t paint me as anti-gay or antiabortion or anything else,” Scalia said. “All I’m doing on the Supreme Court is opining about who should decide: Is it a matter left to the people, or is it a matter of my responsibility as a justice of the Supreme Court?”
Ginsburg said the court does not get out in front of public opinion but issues its “stamp of approval” only after a “groundswell of the people” demands a more inclusive conclusion.
Asked by Totenberg if she could have imagined decades ago that there was a right for same-sex couples to marry, Ginsburg said: “My own view of it is that people who once hid what they were have announced to the world, ‘This is who I am’ . . . they turn out to be our next-door neighbor of whom we are very fond, our child’s best friend, perhaps even our child.”
On their differences over constitutional interpretation, Scalia concluded, “We’re never going to agree.”
Ginsburg said they did agree, to the consternation of some of her “feminist friends,” about the title of the opera about them, “Scalia/Ginsburg.” The justices of the Supreme Court are not listed alphabetically, Ginsburg said, but by seniority. And although she is three years older than Scalia, he has the longer tenure on the court.
Her friends were once similarly irked about a famous photo of Scalia and Ginsburg riding an elephant during a trip to India. He was in front, she was in back, but “the driver explained it was a matter of weight distribution,” she said.
Scalia said those friends would have been reassured by what came later on that trip. The two justices were being entertained by the chief justice of India’s supreme court.
“As we entered his house, all the women were ushered into a separate room, and all the men” remained, Scalia recalled, chuckling.
“Ruth did not for a minute head for that room. It was wonderful to watch.”