The Supreme Court as a Model for Politics

In the wake of the passing of the Supreme Court Justice Antonin Scalia, his close friendship with his fellow Justice Ruth Bader Ginsburg has received renewed attention in the press. Recently the subject of an opera, this friendship between two seemingly mismatched and sharply ideologically opposed individuals has seemed comical, perplexing, exemplary, or even threatening to various observers.

That an arch social conservative and such a principled liberal could share a strong and enduring friendship may seem surprising to many; that they could do so while acting as two of the most prominent and influential voices in their respective camps within a profoundly fraught and polarized political climate seems truly remarkable.

In trying to understand the character of their relationship, it may be tempting to compartmentalize it, to situate their friendship within a personal and private realm and their legal and political antagonisms within the realm of their public office, these two dimensions existing independently and quite separately. Yet the fact that their legal and political differences didn’t overwhelm their friendship seemed to arise from more than a fragile and delicate pact holding the former at bay. Besides, such ‘agree to disagree’ friendships typically survive by rigorous mutual commitment to avoid interrogating differences, an option that clearly wasn’t afforded to Ginsburg and Scalia, who had to expose their differences to regular and rigorous scrutiny.

The ability of their friendship to sustain their extreme differences depended in part upon their determination to distinguish persons from ideas. As Scalia once remarked, ‘I attack ideas. I don’t attack people. And some very good people have some very bad ideas.’ In reference to his role as a Supreme Court Justice, he added, ‘if you can’t separate the two, you gotta get another day job.’

That Ginsburg and Scalia could believe, even amidst their sharp and principled differences on issues such as abortion and same sex marriage, they were interacting with a person of good will is striking. However, it is also unsettling for any for whom the supposed moral weight and clarity of these issues and the self-evident righteousness of their positions upon them seems to preclude any possibility that an intelligent person of good will might hold an opposing position.

The difficulty we may have in understanding Scalia and Ginsburg’s friendship could be result of a dearth or a weakness of intellectual empathy on various sides of our political and social divides. Persevering in a healthy friendship with people whose viewpoints one often finds profoundly objectionable and with which one does not naturally resonate generally requires a strong capacity for such empathy, the ability and willingness imaginatively to assume a perspective quite different from one’s own and to understand why intelligent persons of good will might be led to hold them, even though they may be mistaken in so doing.

In contrast to the more instinctive and affective reality to which in popular parlance ‘empathy’ generally refers, intellectual empathy typically functions less as an emotional reflex than as an exertion of charity, will, and imagination, the exercise of love’s duty to believe the best of another. Where natural empathy places us at risk of bigotry—as we more naturally empathize with people who act, look, and think like us—our exertion of intellectual empathy can express our ethical commitment to struggle against our emotional instincts in order to extend to people a charity that may not be naturally elicited within us.

The dearth of intellectual empathy in the current social and political climate is widely displayed, perhaps most notably in the Bulverism by which people on various sides lazily assume that opposing viewpoints on a host of issues such as abortion, the death penalty, guns, race issues, same-sex marriage, and immigration policy arise purely from some dissembled hatred, pathology, or will to power and dismiss them accordingly, without close, careful, and charitable engagement. While there are doubtless occasions where genuine malice is present, the prevalence of such cases is greatly overstated.

Friendship with ideological opponents, while it may not entirely deliver us from the lure of such Bulverism, does challenge us to exercise a patience and charity with people who disagree with us that we might not show under other circumstances. Friendship presses us to exercise the Christian virtue of believing the best towards those whose words we would otherwise be tempted to subject to an unforgiving hermeneutic of suspicion or whom we would precipitously abandon to a state of irredeemable ignorance.

A friendship such as that between Ginsburg and Scalia could probably only succeed if, rather than being jeopardized, it drew strength from the expression of strong disagreement. Both Scalia and Ginsburg seem to have admired and respected each other as sparring partners, and relished their arguments. As Ginsburg recently wrote: “We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion.”

Here Ginsburg expresses a sentiment similar to that of Proverbs 27:17: ‘Iron sharpens iron, and one person sharpens the wits of another.’ George Lakoff and Mark Johnson, in their book, Metaphors We Live By, comment upon the manner in which the conceptual metaphor ‘argument is war’ shapes the way that we imagine and practice our arguments, viewing our opponents as enemies to be destroyed. While they suggest the alternative metaphor of dance, Ginsburg seems to be employing something closer to an implicit metaphor of sparring, retaining the centrality of agonism and conflict, while rejecting the notion of personal antagonism.

While one wishes to win against a sparring partner, the act of sparring with a gifted opponent typically engenders respect and appreciation for them, a sense of the importance of your continuing and shared struggle for testing and honing the strength and skill of all parties, and often a shared delight in the way that the strengths of all sides emerge through a well-matched engagement.

Perhaps one of the important things that such an implicit metaphor offers is a sense of ideological conflict as something that can be bounded and engaged in with charity and mutual respect. Without denying the weight of the issues that might be at stake, the metaphor of sporting agonism implies the possibility and desirability of maintaining our necessary conflicts within the bounds of a shared life and discipline, rather than elevating all disagreements to the level of ideological antitheses.

Ginsburg and Scalia’s strong friendship across the very ‘front line’ of the so-called culture wars is an example of how such a possibility could be realized. It represents the possibility of a shared realm of civility and friendship that bounds our political and legal antagonisms and prevents our struggles over cultural values from devolving into cultural ‘total war’.

It has rightly been observed that ‘civility’ is a value that can be cynically appealed to in order to silence the voice of protest against injustice, yet all too often the rejection of civility in the name of protest involves a premature and unnecessary polarization, rather than a reluctantly adopted final avenue of recourse. Representing ourselves as struggling with hateful and malicious people and viewing our issues purely in terms of the sharp moral lines of good versus evil can feed both activism and our self-image, but it is seldom an accurate representation of the actual state of affairs, where intelligent people of good will may exist on all sides and many of the issues may be discovered to be caught up in difficult and thorny questions of prudence, rather than of absolute principle and value.

One of the benefits of friendship and civility is the reasonableness that they encourage, opening us up to the possibility of being persuaded and of persuading our neighbour: it is no surprise that James mentions this as one of the traits of the wisdom from above in James 3:17. Approaching our disagreements with such an attitude will meet with far greater success in persuasion.

The concreteness and practicality of personal friendship has a way of mitigating the antagonisms and polarizations encouraged by more abstract ideologies, of revealing shared loves, the possibility of common causes, of breaking our differences down to size. Friendship humanizes those with whom we differ, enabling us to see them as more than just voices of a misguided ideology.

This is especially important in our Internet age, where the pace of our discourse and the tendency of many of our social media to regard people solely in terms of what they say, and to be threatened by the presence of difference tempts us to rely upon prejudice—with its split second judgments and reduction of people to stereotyped opinion-holders—more than ever before. Relating to people in the realm of physical action and community also reveals how poor a predictor people’s professed ideas often are of their actual behaviour. It is concerning to observe that people on different sides of our various cultural divides are often increasingly invisible to each other.

The current rise of inflammatory and uncivil rhetoric, of prescriptive, punitive, and censorious speech codes, of rapid recourse to litigious and officious measures, and of sharp political polarization all manifest and encourage in their own ways a general cultural loss of faith in persuasion, discourse, and civil society to contain, mitigate, or resolve our differences. The tsunami of discord sweeps all before it.

In their capacity as Supreme Court justices, Scalia and Ginsburg both represent the authority of the law. However, part of the purpose of healthy legal structures is to discourage people from swiftly resorting to them, providing an incentive to pursue conciliatory measures, to achieve compromises, or to resolve disputes privately and in a civil manner (observe Jesus’ teaching in Matthew 5:25).

Through this negative function, the law serves to encourage a generous and spacious civil realm, to discourage us from totalizing and absolutizing our conflicts, to set bounds upon the seething waters of our disputes. In their personal friendship, Ginsburg and Scalia offer an example of the possibility and power of a renewed civility for moderating the vicious oppositions of our social and political discourse, for containing and mitigating the antagonisms that they have so powerfully symbolized in their legal capacity.

Alastair Roberts is a blogger and writes the regular feature on the politics of Scripture for Political Theology Today.