Scalia/Ginsburg: The Rhythm of the US Federal Supreme Court

Abstract

The paper analyses the comic opera in one act SCALIA/GINSBURG by Wang that premiered in 2015 at the Castleton Festival. Its subject is the real-life friendship and the fights in the court between two of the most famous judges of the US Federal Supreme Court. They embodied two opposite views on society, law and especially constitutional interpretation. While Justice Scalia was conservative and believed that the meaning of the Constitution should be what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be (originalism), Justice Ginsburg is liberal and supports the view that its meaning should evolve with the times. By examining the libretto, the article focuses on some famous and controversial decisions of the US Federal Supreme Court that show the divergent views of Scalia and Ginsburg.

Towards the end of the opera, they sing a duet “We are different, we are one”. It enlightens that despite their different interpretation of written texts and ideological and intellectual disagreements they were united by their reverence towards the institution and especially the Constitution.

However this debate in the Supreme Court is also a sign of the general struggle of the constitutional courts to decide fundamental issues and it raises the question of their legitimacy to address these issues since their role is becoming more and more political.

1 The Plot

More than a year after the death of Justice Scalia, the one-act comic opera “Scalia/Ginsburg” by Derrick Wang has inadvertently become a tribute to a judge, a friendship, a period of the US Federal Supreme Court, and, due to the influence that the Court has, to the United States itself. The strength of the opera is not so much the originality of the music that is a pastiche of different authors and genres but rather the masterly interweave between words and notes and the liveliness of the libretto. It shows a profound knowledge of Supreme Court case law and the opinions of the two judges depicted with a refined text. Watching the opera becomes almost a game of recognizing which decision is referenced in the verses. There are no good guys and bad guys but only two protagonists who are very different, whose characters are presented in a manner that is affectionately ironic.

The plot is simple. While Justice Scalia complains of the volatility of the Court, and here the musical reference cannot but be to Verdi and the celebrated “La Donna è Mobile,” and of the low level of respect for the intentions of the Founding Fathers, a statue is transformed and appears as the Commentator. It is a celestial bureaucrat, who wants to question him on why for 28 years on the Court he has written so many and excessive dissenting opinions. If Scalia wants to avoid being banned, he must pass three trials. The arrival of Justice Ginsburg on the scene, who interrupts the squabble between the two, becomes an occasion for critical reflection on the Court’s activism and their different ideological visions. Justice Ginsburg convinces Justice Scalia to face the trials. When the Commentator asks Justice Scalia to defend his legal thinking, the Judge, on the notes of Bach, tells his story as a child of immigrants, the importance of respect for the rules learned from his father, and his deep conviction that only by following traditional values “America can rise again.” Justice Ginsburg, asked to leave at this point, remains affirming women’s rights, constant in her intention to be present where it counts. Thus, the second trial involves both of them, who must remain silent while the Commentator provokes them. At the continuous mention of Bush v. Gore,¹ Justice Scalia speaks and therefore is banned. Justice Ginsburg refuses to abandon him and follows him, to the surprise of the Commentator, who asks her why she is defending her enemy. It is the occasion for the most important aria in the opera:

• SCALIA, GINSBURG (cont’d)

• We are different.

• We are one.

• The U.S. contradiction—

• SCALIA:

• The tension we adore:

• SCALIA, GINSBURG:

• Separate strands unite in friction

• To protect our country’s core.

• This, the strength of our nation,

• Thus is our Court’s design:

• We are kindred,

• We are nine.

Moved, the Commentator reveals that they have passed the test. After a celebration of the relationship between music and law, while a waltz by Strauss is playing, before returning to his form as a statue, the Commentator offers Justice Ginsburg a letter and a sweet from her deceased, lamented husband, who has now become a celestial chef.

2 Two Different Justices

The choice of the protagonists is due to the contrast that has always stirred surprise and interest between their strong legal and ideological opposition and their solid personal friendship,² based also on a common passion for opera. The decisive factor was their charisma, which has made Scalia and Ginsburg interesting figures not only for the legal world³ but also for popular culture. Antonin Scalia was a controversial justice, esteemed or fiercely criticized for his sharp, conservative views.⁴ Appointed by Reagan, Scalia was defined by the defense of a traditional America⁵ that often placed him in the minority.⁶ His opinions were biting, ironic, denoted by irreverent sentences that became famous.⁷ Style⁸ is an essential component of his thinking. It has been observed, for example, that he cannot be accused of using what Orwell defined as a bureaucratic style aimed at hiding his views: “Justice Scalia’s style has a point beyond mere delight. By writing simply, clearly, directly, and forcefully he makes a moral and political point about judging, about the law, and about the kind of institution the Supreme Court should be.”⁹ His jurisprudence, though, also stood out for its legal technique.¹⁰ As stressed by Justice Kagan at the time of Scalia’s death: because of his influence, “we’re all textualists.”¹¹

Ruth Bader Ginsburg, nicknamed RBG, became the second woman on the Federal Supreme Court after Sandra Day O’Connor and is of Jewish origin. Appointed by Clinton, she represents the liberal ¹² view and is known and appreciated for her battles for women’s rights and equality, narrated in the aria “You sir are wrong here” in the opera. Hers is a feminism not characterized by rhetoric or hysteria but originating from the awareness of a person who, despite belonging to two minorities, succeeded in reaching a seat on the Federal Supreme Court.¹³ Balanced and passionate in her activities in the Court, she continues to follow the principles already expressed in her acceptance speech referring to Justice O’Connor: “when a modern constitutional judge is confronted with a hard case, Holmes is at her side with three gentle reminders: first, intellectual honesty about the available policy choices; second, disciplined self-restraint in respecting the majority’s policy choice; and third, principled commitment to defense of individual autonomy even in the face of majority action.”¹⁴

Scalia and Ginsburg are above all the symbols of two different theories of interpretation of the Constitution and the law, and of two different Americas. Originalist thought,¹⁵ of which Scalia was one of the most effective, well-known, and divisive representatives, is presented fairly but with irony, when the judge says:

• This right that they’ve enshrined

• We all know well what the Framers did say,

• And (with certain amendments) their wording will stay,

• And these words of our Fathers limit us

• For we are unelected.

Two types of criticism are made of this view. The first regards the impossibility of finding a common intention of the Founding Fathers on the canons for interpretation of the text of the Constitution. Originalism as a doctrine¹⁶ emerged in the 1970s as “original intent-originalism” and was based on the reconstruction of the thinking of the Framers while they wrote the Constitution. The practical difficulties due to the scarcity of information and the objection relating to the absence of binding value of the constituent process led to its evolution as “original understanding-originalism.” It was distinguished from the first conception because it was based on the interpretation of the views of those who ratified the Constitution. However, this thesis was also criticized, both because of the complexity of identifying a unitary view in a wide range of people from different states and with different needs and because the use of legislative material to interpret the text of the Constitution was also questionable.¹⁷ The last change to originalist thinking took place with “public meaning originalism,” of which Scalia was the leading exponent¹⁸: the Constitution must be interpreted in light of the meaning that the terms had at the time the document was written. According to part of scholarship, this is a fictitious canon as there was not even a unified view among the Founding Fathers that would justify this hermeneutic operation thus to allow for a convincing and rational reconstruction.

The second objection to originalist thought argues the need to interpret the Constitution so as to respond to modern needs, that it is unlikely the Founding Fathers could have imagined. The idea of a “living Constitution”¹⁹ supported by Justice Ginsburg is highlighted in the opera when she states:

• And we can’t wait for slow legislation

• To catch up with the lives that we already lead;

• We have rights, and they need preservation,

• And we have to remember this if we intend to succeed:

• Though we won’t be afraid of forgiving,

• We must not stop in our mission to right every wrong—

• Not until We the People and our Constitution are living.

That line of argument also focuses on the evaluation of the consequences of a decision. In Active Liberty, Justice Breyer presents this argument, stressing that such an approach does not lead to greater uncertainty and is also more effective in promoting democratic values and freedom. Moreover, subjectivity is a risk also for originalist thought: “The literalist’s tools—language and structure, history, and tradition—often fail to provide objective guidance in those truly difficult cases about which I have spoken. Will canons of interpretation provide objective answers? One canon tells the court to choose an interpretation that gives every statutory word a meaning. Another permits the court to ignore a word, treating it as surplus, if otherwise the construction is repugnant to the statute’s purpose. Shall the court read the statute narrowly as in keeping with the common law or broadly as remedial in purpose? Canons to the left of them, canons to the right of them, which canons shall the judges choose to follow?”²⁰ On the other hand, a literal interpretation, following this approach, can lead to dangerous and harmful consequences, not taking into account current reality.

We note that those criticisms can be shared in part.²¹ Indeed, it is difficult and often unrealistic to refer to the meaning of words in the Framers’ time to resolve current disputes, although the underlying philosophy and ideals should not be forgotten. This line of reasoning also highlights the problematic relationship between law and time, and the recognition of the ontological temporality of law: “A jurist is tasked with renewing the interpretation in each situation of application … through interpretation and application the present penetrates the contents of law, breaking the symmetry between the past and the future that belongs to abstract situations.”²²

Scalia himself recognized that “the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world,”²³ and he defended originalism as the “lesser evil.”²⁴ Yet in his sarcasm when he stated that he was defending a dead Constitution as opposed to the living one,²⁵ there is a profound truth. The great merit of “public meaning originalism” in United States case law is to strictly link the interpretation of the text of the Constitution attempting to limit excessively creative and innovate readings of the same. Indeed, Scalia’s question hits the mark when he asks what the limit is at the moment one deviates from the text. The risk is that the Constitution will change “from a charter of the rule of law into a license for the rule of the court.”²⁶ The activity of interpretation does not imply a transformation, or worse a distortion to adapt the laws to the judge’s views²⁷ to the detriment of the certainty²⁸ of the system.

It is known that there is a debate on the diverse nature of principles and rules and on different canons of interpretation. We note, however, that the Constitution cannot mean “what it should mean” based on “evolving standards of decency that mark the progress of a maturing society.”²⁹ This has led to conforming constitutional text in a manner increasingly distant from its original meaning, to the point of including ideas that are very far from the original. In fact, there will always be a principle that can settle the case: “never mind the text that we are construing: we will smuggle these new rights in, if all else fails under the Due Process Clause.”³⁰ It is used the same way to guarantee abortion and to penalize excessive punitive damages, showing a flexibility that cannot but leave us perplexed.³¹ But the reflection could extend to the principle of solidarity in Italian Constitution. We “enter into a metaphysical or ideological afterlife where subjective aspirations and unsatisfied desires are projected or take form.”³² That approach then poses the problem of how to identify the evolution of the Constitution and which criteria should be used to identify the change and determine the indicators to be followed in a decision: “is it the will of the majority discerned from the newspapers, radio, talk shows, public opinion polls and chats at the country clubs? Is it the philosophy of Hume, or of John Rawls or of John Stuart Mill or of Aristotle?”³³ The plurality of values is realized in a multiplicity of visions and ideologies³⁴ that involve the same balancing operation.³⁵ Lord Devlin has also stressed that at the time we stray from the text, confusion prevails: “five judges are no more likely to agree than five philosophers upon the philosophy behind an Act of Parliament and five different judges are likely to have five different ideas about the right escape route from the prison of the text.”³⁶

It must be recognized that, at any level of interpretation, “the judge must have the ability to use the heritage from the past and at the same time reduce it where necessary to create room for new viewpoints that distance themselves from the certainties inherent in traditional forms of life and become carriers of new values,”³⁷ but the literal meaning is the extreme limit of the variables that can be attributed to a text.³⁸ The most careful scholarship, in fact, by now recognizes the complexity of legal phenomena, the polysemy of terms, and the role of context, but this does not authorize us to go beyond the text.³⁹ Therefore, the consequences of a decision can also strengthen or supplement the ratio decidendi but cannot prevail over any other considerations.⁴⁰

The same approach of attention to the contents of the text must all the more so be used also in the interpretation of statutes.⁴¹ Scalia’s dissenting opinion in Burwell v. King in 2015⁴² is exemplary. The Court was asked to decide whether the premium tax credit established for by the ACA applied not only to persons “with exchanges established directly by a state” based on the literal text of the law but also to “those otherwise established by the Department of Health and Human Services.” The decision, which was subject to considerable criticism, affirmed the admissibility of the extensive interpretation, probably to save a reform like Obamacare, which otherwise would have concretely failed given the poor legislative technique and the limited cooperation of the states. Justice Scalia pointed out the strained interpretation, stating “words no longer have a meaning if an Exchange that is not established by a State is ‘established by the State.”⁴³ In fact, despite recognizing the importance of context, he recalled “why context matters: it is a tool for understanding the terms of the law: not an excuse for rewriting them.”⁴⁴ Indeed, context should never lead to ignoring or contradicting the text.⁴⁵ The textualist view⁴⁶ is also based on the need to guarantee the predictability of decisions. In a case on the applicability or nonapplicability of the Chevron doctrine, Justice Scalia, countering the majority opinion, which accused him of excessive simplification, noted that “the Court has largely replaced Chevron, in other words, with that test most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect): th’ ol’ ‘totality of the circumstances’ test.”⁴⁷

Furthermore, some scholarship has shown how decisions that stray from or exceed the text often clearly show the political nature of the Court, with possible negative consequences. In fact, the widespread support for judiciary power, which principally lies in the perception of its neutrality, is less linked than that for the legislative and executive to an evaluation of outcomes. However, if the Court is perceived as political, it is clear that the standards of judgment will change and become more similar to that for the other two powers.

3 Theories of Interpretation and the Principle of Separation of Powers

It must therefore be stressed that the problem of interpretation cannot be faced without assessing the implications in the theory of relationships between powers of the State. It is important to note that respect for the principle of separation of powers has represented one of the constant elements of Scalia’s thinking and jurisprudence. It is evident in his reasoning on the doctrine of standing⁴⁸ and in his lucid analysis of the role of agencies and the courts. This vision is joined with a preference for a strong executive, where the strong influence of Hamilton is felt.⁴⁹

Authoritative opinion has pointed out⁵⁰ that the principle of separation of powers has undergone a profound evolution from the classical model that was based on the liberal conception of the state and civil society, to adjust to the needs of the social, interventionist state. In fact, from the fundamental role of legislative power as a guarantor of this order and of fundamental liberties, we have shifted to a primacy of the executive, defined as the governing power,⁵¹ to respond to new needs and safeguard social and economic rights. The individual remains firmly at the center of this new view, but the model of organization and protection is structurally different, although maintaining continuity.⁵² While we see the advancement of new and old actors and the rise of diverse tremors and values, it seems necessary to recall that “at the origin of the separation of powers is the idea that the individual has the right to protection by a political power that recognizes his maximum freedom of action in all fields with limits strictly understood to guarantee an equal, formal liberty to other individuals and with minimum discretion in the hands of power for the purpose of a suitable administration of limits … The sacrifice of this primary value should be reached only when reason demonstrates not only simple reasonableness, but genuine impossibility.”⁵³ Today, the courts have taken on a central role that has once again altered the balance between powers. This is due in part not only to the choice of the legislator to delegate⁵⁴ important decisions to jurisprudence through laws that are open or require additional specification and to a poor legislative technique but also to the perception of judges themselves of being the true creators of law⁵⁵ and the best custodians of the values and interests of society.

In that context, a debate has returned that was never really resolved, concerning the limits on review of constitutionality. That function, born as an “aristocratic” corrective by the “best” to protect the values and interests of society, has taken on such an importance that we must assess to what extent the wishes of the aristoi can substitute for those of the majority.⁵⁶ It has been effectively observed that “many countries have seen a growing legislative deference to the judiciary, an increasing and (often welcomed) intrusion of the judiciary into the prerogatives of legislatures and executives, and a corresponding acceleration of the process whereby political agenda have been judicialized.”⁵⁷ This is, according to one view, a juristocracy.

The countermajoritarian difficulty⁵⁸ is effectively overcome, considering constitutional rigidity and control as tools of realization of the democratic will on which the constitutional compact is based, which prevails on successive generations.⁵⁹ However, precisely this means that the text must be the foundation for the exercise of review of constitutionality, interpreted strictly and not in an arbitrary, extensive manner. It is the text, in fact, that has been the subject of democratic will, and it is the text that is binding.

These observations imply the need for self-restraint⁶⁰ by the courts.⁶¹ There was common ground on this aspect between Scalia and Ginsburg,⁶² although not in the identification of the possible cases of interventionism.⁶³ Justice Ginsburg started not only from an opposite ideology but also from a different conception of judges in a democratic context: “(they) play an interdependent part in our democracy. They participate in the dialogue with other organs of government, and with the people as well.”⁶⁴ The need for a prudent approach is analyzed in depth in the thinking of Bickel,⁶⁵ who warns of three possible risks in the absence of well-considered reflection: the loss of the Court’s legitimacy, due to the emergence of social opposition to its choices; lesser integrity of the principles set forth; and the invasion of areas that are the domain of other powers. In fact, the flexibility to decide “which principles and how, but also when and in what circumstances”⁶⁶ is essential to choosing which disputes it is suitable to consider.⁶⁷

Although Scalia’s critics point out his lack of full adherence to the principle of self-restraint, this aspect is stressed strongly in his dissenting opinions, together with the firm conviction that there cannot be social transformations without representation. Thus, it is considered unfortunate that “a self-righteous Supreme Court, acting on its members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.” Indeed, “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not.”⁶⁸ This does not mean that certain rights do not need to be recognized or guaranteed or simply that they must be so in a democratic procedure.⁶⁹ An objection could be that if the decision is correct, it does not matter if it was expressed by a judge or a body expressing the will of the people.⁷⁰ Yet the respect of form in a democracy with increasingly procedural characteristics⁷¹ itself becomes the protection of law. When complex choices are necessary that touch the essence of man, the very legitimacy of the Court in deciding appears to be debatable: “the point at which the means necessary to preserve life become ‘extraordinary’ or ‘inappropriate’ are neither set forth in the Constitution nor known to the nine Justices of this court any better than they are known to nine people picked random from the Kansas City telephone directory.”⁷² In fact, if “(the) meaning of the Constitution ought to change according to democratic aspirations, why are those aspirations to be found in Justices notions of what the Establishment Clause ought to mean, rather than in the democratically adopted dispositions of our current society?”⁷³ The positions favorable to the juristocracy seem to forget the implications of this position and its possible problematic developments. In United States v. Windsor,⁷⁴ Scalia warns: “We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”⁷⁵

Today we observe that the verification of constitutional legitimacy “seems to re-open the distinction or antithesis between legitimacy and legality, or if we wish, between rights and law, between nomos and lex.”⁷⁶ It is ever less “the verification of validity, judgment concerning the observance and limits that one law dictates to another law: both laws, within the scope of the positive law of a state: both resting on the beliefs of the addressees,”⁷⁷ but it becomes a competition between values.⁷⁸ Indeed “it is rarely possible to say with a straight face if a decision on constitutional matters made by the Court was correct or not”⁷⁹ since “these cases can only be decided on the basis of a political judgment, and political judgments cannot be defined as right or wrong with reference to the laws.”⁸⁰ Thus, “the legitimacy lost due to dissolution of religious, dynastic and traditional bonds would return in the form of values, almost substituted or subrogated by those ancient assumptions”⁸¹ that enter into constitutional laws: “the Rule of law is taken from an ambiguous combination of legislative state and jurisdictional state”⁸² and its sovereignty “shatters and disintegrates.”⁸³ By reproposing a link with the text and its original interpretation, originalist thinking, despite its limits, attempts to oppose these risks and prevent the judge from becoming a guardian of a moral current⁸⁴ or a defender of its subjective preferences.⁸⁵ Learned Hand had already warned that “it would be irksome to be governed by a bevy of platonic guardians even if I knew how to choose them, which I assuredly do not.”⁸⁶ In a pluralistic society, it is incomprehensible why judges should decide the values to be implemented.⁸⁷ It is the text, correctly understood, that restricts the activity of the decisor and allows for an equal balancing between the will of the majority and individual rights. On the other hand, “although with due respect for freedom of interpretation and the evaluative options referred to the judging, the justice of the decision demands respect for every substantive and procedural rule, enunciated by the legal system, of which those called on to judge are at the same time called on to concretely implement, without modifying (or showing that they have forgotten) the mandatory nature.”⁸⁸

4 The Myth of the Supreme Court of the United States

The opera acknowledges the conflicts between Scalia and Ginsburg,⁸⁹ which at times were intense, but in its conclusion the rifts are settled in the unity of the US Federal Supreme Court. The choice is that of a reassuring “happy ending.” It could seem rhetorical. This impression fades though, if we consider the deep friendship between the two justices.⁹⁰ It was Justice Ginsburg who wrote the most personal memory of Scalia in the Harvard issue dedicated to him after his death. In her words, there is no trace of the brilliant and divisive judge but the trace of a friend: “I miss the challenges and the laughter Justice Scalia provoked, his pungent, eminently quotable opinions, so clearly stated that his words rarely slipped from the reader’s grasp, the roses he brought me on my birthday, the chance to appear with him once more as supernumeraries at the Washington National Opera. The Court is a paler place without him.” And it was Justice Ginsburg who explained the foundation of this relationship using Wang’s opera: “Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: ‘We are different. We are one’. Yes, different in our interpretation of written texts, but one in our respect and affection for each other and, above all, our reverence for the Constitution and the Court.”⁹¹

This aria shows one of the reasons of the strength of the US Supreme Court, which derives from the perception of its unity despite the differences present, and whose roots are in myth. It has indeed been observed that myth is still the most solid source of legitimacy and includes two aspects: political doctrine, which constitutes the rational structure of power, and an irrational⁹² and emotional element that heightens the sentiment of loyalty and collective identification.⁹³ The myth⁹⁴ is born from the need that each of us has for a Bedeutsamkeit, defined as a defense against the indifference of the world.⁹⁵ It is not a static but a dynamic narrative that constantly evolves and addresses a certain group differently and based on the relevant time, context, and needs.⁹⁶ It cannot be considered a “piece of paper”⁹⁷ but has both a cognitive dimension and an aesthetic one. In fact, it provides the outline to interpret⁹⁸ and describe current social reality and gives a possible future perspective and is characterized by an account of events in dramatic form.⁹⁹ It should be noted that “no one will want to maintain that myth has better arguments than science; no one will want to maintain that myth has martyrs, as dogma and ideology do, or that it has the intensity of experience of which mysticism speaks. Nevertheless it has something to offer that – even with reduced claims to reliability, certainty, faith, realism, and intersubjectivity – still constitutes satisfaction of intelligent expectations.”¹⁰⁰

The US Federal Supreme Court has always had an aura that gives it authority and respect. Its history, its decisions, the prestige of its justices make it a symbol and a myth.¹⁰¹ The architect of the building even intended it to represent “the most important tribunal in the world and one of the three great elements of the national government”¹⁰²: the stairs depict the American march towards justice and “separated the Court from everyday reality – especially from the mundane concerns of politicians – and announced that the judges would literally operate on another level.”¹⁰³

Loyalty to the Constitution and the profound awareness of its role take concrete form in the absence of animosity that affects the political branches. This allows the Court to operate maintaining a consent that is fairly stable in public opinion and overcomes divisive decisions without particular difficulties. This is bolstered by the practice of dissenting opinions that allow for knowing the arguments of the judges and, as noted by Scalia and Ginsburg, in the long run strengthens the importance of the Court.¹⁰⁴

It is a still unaltered prestige to which this opera bears witness, and that shows the difference between the US Federal Supreme Court and the other supreme courts. Scalia/Ginsburg speaks of an ideological clash and a real friendship,¹⁰⁵ but above all of the dynamic of a court that has always been seen with respect also by other legal systems. The arguments of these two justices have effectively represented the internal aspect of the debate, its tensions, uncertainties, and values. Even after the appointment of the new Justice,¹⁰⁶ the nostalgia remains for Scalia’s arguments. It would be an error or in any event an oversimplification to attribute his preferences exclusively to a conservative view or judge them only based on ideological preference. Scalia himself was conscious that he could be seen as an old fogey,¹⁰⁷ but he said he was not worried, maybe by habit. It should also be observed that the liberal touches of his jurisprudence are often forgotten, principally¹⁰⁸ in the interpretation of the Fourth and First Amendments.¹⁰⁹ Whether we agree with his ideas or not, and regardless of this assessment, the strength of his legal arguments lied in his technical abilities, but above all “in his abiding commitment to one ideal above any other: the rule of law” and in the clash with the “rule of judges.”¹¹⁰ No more can be asked of a judge, and no more should be asked.