Respect and Clarity: Ginsburg and Scalia

Justices Scalia and Ginsburg on vacation

Justices Scalia and Ginsburg on vacation

"Man is a rational animal — so at least I have been told. Throughout a long life I have been looked diligently for evidence in favour of this statement, but so far I have not had the good fortune to come across it."

By Sam Yang - Get similar updates here

When Supreme Court Justice Antonin Gregory Scalia died on February 13, 2016, the world looked to his rival, Justice Ruth Bader Ginsburg, to summarize his legacy. She was the liberal lioness of the court, Scalia, her staunch conservative counterpart, yet they were the best of friends. This is novel and contradictory to many, which is why it is often highlighted. I wanted to highlight why this shouldn't be a contradiction, we should use this relationship to judge ourselves and how we think about one another — to highlight how different our thought-processes are from theirs.

Critical Thinking

Let's put ego aside for a moment and talk about critical thinking. Critical thinking is not about the outcome or the conclusion. Anyone can form a judgment; critical thinking is the system of logic, the process, the objective analysis and evaluation of an issue so that one may form an opinion. This does not mean we will always end up on the same side of the argument. One can't look at a conclusion and decide just from that, whether this was well-thought-out or not.

In a rational debate, an argument can still fall apart even if you agree with its conclusion. The reverse is also true.

In Nicomachean Ethics, Aristotle defined humans as:

A rational animal.

This also asserts that not every person is wholly human since everyone has varying degrees of rationality, or without rationality. You will find this sentiment still exists, we call people who confound our reason, "animals."

Bertrand Russell writes:

Man is a rational animal — so at least I have been told. Throughout a long life I have been looked diligently for evidence in favour of this statement, but so far I have not had the good fortune to come across it.

When dealing with certainty, we can come to conclusions that are valid and true. Aristotle gave this example:

All men are mortal.
Socrates is a man.
Socrates is mortal.

This may sound obvious to us know, but back when anything seemed plausible, this was a revelation. But most things in life are far more complicated. We deal in uncertainty, our conclusions are subjective and based on perspective. Since we can't be absolutely positive of the conclusion, we must base validity on the process — or whether there was a process at all.

In the film, The Big Lebowski, the Dude summarizes this sentiment in the now iconic line:

Yeah, well, you know, that’s just like, your opinion, man.

Free to Think but Do Clarify

You get to clarity by thinking; clarity is a sign of a good thinker.

Oscar-winning actor Richard Dreyfuss went to a rally for presidential candidate Ted Cruz, to better understand what he was disagreeing with. For that, he was slammed by his own party. In a way, thinking of the world in teams not only makes us more angry, but also less intelligent.

Before I can agree or disagree with you, you must first make clear your premise and why you believe it is valid. I respect clarity. Your contention, I may not agree with, like, or respect. However, I can appreciate why you think it, how you came up with it, and respect your freedom to think it. In George Orwell's dystopian novel, Nineteen Eighty-Four, the Thought Police were charged with exposing and punishing thoughtcrime and thought-criminals. Policing thoughts, even the ones we hate, is fascism.

Ginsburg said of Scalia:

I disagreed with most of what he said, but I loved the way he said it.

The Way You Said It

It's not only what you said, it is also the Way you said it.

There are a lot of people who agree with my worldviews, yet that does not make them all sound-minded. Some of them are probably mad.

I think the sky is blue, you think the sky is blue: that's our conclusion. 

My premise is: The sky is blue because the molecules in the air scatter blue light from the sun.

Your premise is: The sky is blue because a blue dragon once scorched the clear sky with its blue flame until it burned blue.

Your version sounds more appealing, it makes for a better myth (narrative), but I'll stick with mine. I like your version, do I respect it? No, not in the classical definition of respect. Should I be happy we both think the sky is blue? I don't care if you agree the sky is blue, I care why you think it.

What I respect and what we should all respect is the process in which we arrive at our conclusions. Convenient thinking is attractive because it's quick and doesn't take much thought, but that's nothing to value. How it is you came to agree or disagree with me? Sometimes, rather than admitting our confusion or whether we can reach clarity, we decide to disagree. That's a problem in communication and listening. Some disagreements happen because we do not understand the question; if we were to make sense of it, we could draw a better conclusion. But it's far easier to say "agree" or "disagree;" quality thinking is hard.

Some people fear admitting their confusion will mean they are a fool. But only a fool would not admit to their confusion.

Judge a man by his questions rather than his answers.
— Pierre-Marc-Gaston de Lévis

Perhaps someone has not yet reached a conclusion, but they gave it much consideration. They asked the right questions. They engaged the mystery. They weren't willfully ignorant. That I can respect. Reaching a hasty, knee-jerk conclusion? I may like the outcome but not the process. There is liking someone and respecting someone, there's a difference. We like people who confirm our beliefs, but do you respect them?

How We Are Fooled

Con-artists mirror our preexisting beliefs to win over our hearts. They know we're suckers for it. They don't need to make sense, they appeal to our emotions. Conclusions are mental parlor tricks, a form of verbal trickery. If we focus on the final opinion, one cannot tell the conman from the genius. If this is our basis for pundits, we will not be able to discern the idiot from the wise, because they will often be in agreement. Then what makes an idiot, wise? How they came to believe it. Yet, if you try to better understand what is being said, there is a chance some in your ilk will find this as a betrayal. (See Dreyfuss.)

Those that value critical thinking and respect the intellectual process may seem curious to an emotional society. If they become friends like Ginsburg and Scalia, we call them an odd couple because they take opposite stances. But they are not an "odd" couple, rational people can do this — they are a "rational" couple.

Person A and B are rational.
Person A and B disagree.
Rational people can disagree.

What does it say of us? How irrational are we if their relationship seems hypocritical, as if the world is broken up into sides. They are colleagues on the same court, both working for the United States of America, who have taken oaths to serve this country. How they interpret the best way to serve this country, that is where they disagree. But they are not enemies from foreign countries in a time of war. Let's be real and adult about this. These primitive feelings are remnants of tribalism: "They are from a different village so we cannot play together."

Rational Debate

Ginsburg said of Scalia:

The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

Scalia called Ginsburg, "the high court's counterweight." He said of his friend:

Having had the good fortune to serve beside her on both courts, I can attest that her opinions are always thoroughly considered, always carefully crafted and almost always correct (which is to say we sometimes disagree). That much is apparent for all to see. What only her colleagues know is that her suggestions improve the opinions the rest of us write, and that she is a source of collegiality and good judgment in all our work.

Respect is won by thoughtful attention and clear reasoning. Many who disagree with Ginsburg or Scalia use sensationalism to make them sound absurd, yet that is not how they judged each other — and they had better insight than we.

Fight Analogy

Ask a fighter about the people they respect most and they will not mention their easiest opponent or a member of their entourage. They may, however, mention their toughest rival.

Now imagine someone training to be a fighter, rather than learning how to fight, they only wanted to learn how to hit hard and knock someone out. Skipping process, learning the finish. Would they be a good fighter? No. Should you judge a fighter based on how hard they punch or how well they fight? In the same way, should you judge a thinker on their conclusion or their premise? If they skipped the thinking process and jumped to a conclusion, would that make them a good thinker? No, they would be a fool.

We Need Criticism

Ginsburg once said of Scalia:

I love him, but sometimes I’d like to strangle him.

You can have fun and disagree. In an enlightened society, in a democracy, you can and should disagree from time to time. Having different opinions is not a violation of our rights; being different is not a sin nor is it an insurmountable barrier to friendship. (Most of the violent ills of this world comes from hating those that are different.) Personally, it is easier to be friends with people who are reasonable than unreasonable individuals who join my choir.

Ginsburg said of her friend:

From our years together at the D.C. Circuit, we were best buddies. 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.

We hate it because they point out our flaws but we need our flaws pointed out to shore up our defenses. To improve, we need to put ourselves to the test. Artists need critics and thinkers require the rigors of deep-review. Imagine science without peer-review?

When asked with whom he would want to be stranded on a desert island, Scalia chose Ginsburg. When asked of their friendship, Scalia said:

She likes opera, and she’s a very nice person. What’s not to like? Except her views on the law.

He was performing for the media, playing to their stereotypes and having fun with it. But it does highlight something significant; to Scalia, Ginsburg's actual views were not as important as the character and the intellect she brought to her views. Imagine if Justice Scalia was in a room with someone who agreed with his politics, yet the person was completely incoherent in their explanation and their framework was ill-informed and ill-conceived. Would this person get a pat on the back and applause from Scalia because he was so happy this person agreed with him? Or would this person get a scolding on legal opinions from one of the top judges of the land? I suspect the latter. So, why are we so different from Scalia and Ginsburg? Is it that important to be agreed with? That we would align ourselves with people who may weaken us. If I respected the blue dragon premise as much as the molecules in the air premise, what does that say about me? It would say I am not guided by good sense.

Thinking on Communication

I have heard people argue, where they weren't actually arguing, they were talking about different things. (It may overlap or there may be some tangential relationship or equivocation.) And more confusing, what they were talking about kept changing, yet they still felt disagreed with. They mistook different topics as different stances. "They aren't saying the same thing as I am so they must be saying I am wrong!"

(A Forcible Argument | Col. Albert S. Evans)

(A Forcible Argument | Col. Albert S. Evans)

I have had people in high school wanting to fight me, telling me they had to "settle something between us." And I had to explain, there is no "us," there is no "thing." Whatever they think I said, usually was not something I said. Either they didn't understand me, or I didn't present myself well. This does not mean the fight was diffused, this means we can get into disagreements without having to disagree. And even if we did disagree, so what? But sometimes people just need any reason to fight. If he wants to fight me, he should say he wants to fight me, rather than disguising it in some nonsense he can use to work himself up to fight me.

I have had people get upset, and I have had to explain I do not disagree with them, that I actually agree with them. I have also seen the reverse, people who think they are agreeing, but if you listen to it again, their ideas and conclusions are incompatible. Yet if you do not know what it is you are saying, how can you tell if someone agrees with you?

Perhaps you believe in the right to bear arms; it's a constitutional matter, one of personal liberties and private property. Let's say another person believes in the right to bear arms because they want to commit a crime, because they want to kill people, or maybe they think we need it for the coming zombie invasion. They want the same thing but their premise, the differences in our reasoning, matters. Let's say someone else disagreed with our opinions on guns but their reasoning was more sound. (Perhaps it's public health and the greater good of society at the expense of some liberties.) In this matter, I would rather align myself with the better premise rather than align myself with the conclusion I prefer. I would not change my conclusion, but I would rather be in a group of sound-minded people rather than an echo of incomprehensible noise. It depends on priorities; what is most important, the process or the conclusion? Both are important and yes we would like them to be in line (same premise leading to the same conclusions) but it does not always happen. You'll find the gray areas are much vaster than the black and white.

Means to No End

If we did draw sides, I'd rather base the lines on process (the Way) rather than the end — because there is no end. Nothing ever ends. Let's say you are a complete jerk to your employees because you believe when everyone gets to the end, they will see what it was all for. Your mistake is thinking there is some ultimate finality. It's like a pie eating contest and when you're done, the prize is more pie. Even if you die, still, life goes on. After your product launch or series premiere, tomorrow still arrives, more products come, more episodes are made, the company keeps going. And if the company goes under, people will go elsewhere to do more of the same. You will always find an infinite number of reasons to remain a jerk (or become a bigger one).

There is no real ending. It’s just the place where you stop the story.
— Frank Herbert

Then all we ever have is the process, the Way we are doing things because we will only ever be in the middle. Within infinity, everything between is the middle. If there are to be lines, let's draw them between rational and irrational, not between agree or disagree.

We often say, "The ends justify the means," and attribute this to Niccolò Machiavelli, yet he never said this. His work, The Prince, is considered by many to be a work of political satire. Why we agree with this sentiment matters and how we began to believe it matters. The end does not justify the means, just as randomly guessing the answers on a test does not make one a genius — knowing all the answers does. If we cannot tell this difference, we are likely to rely on unreliable systems and inadequate leaders.

Thank You for Agreeing With Me

We fawn over people who agree with us, even if they are without logic, as long as they are on our team. We see this in movements where ideologies that are in conflict will join forces for political motives because they need more people on their team. Yet there are no teams. They make strange bedfellows. Yet this is not odd for us, this makes sense to us. People who align with other critical thinkers even though they can be in disagreement over the ends? This is unacceptable to the public at large. This is the difficulty of working across the aisle in politics.

Picking Teams (Choose Wisely)

Irrational is thinking without reason. If a rational person teams up with someone irrational, either the rational person was never rational, or the irrational person was never part of this team.

We make life binary. You hear, "You're either with us or against us." Okay, then this person is with you, now what? Who are you drafting onto your team? It's not going to be an all-star line up, I can tell you that much. I don't want the blue dragon or zombie invasion folks on my team, even if they are "with me." Think about dating, you put all the people who like you on one side, they are your team. Would you date all of them? You would probably be terrified by some of the people who like you, just as you should be terrified by some of the people who agree with you. Imagine high school debate where people didn't get to debate or present their premise, you only judged the winner based on the conclusions they were given. What would that prove? "With or against" is far from reliable.

We pick opinions over reason because of confirmation bias. We love to be right; it has nothing to do with our love for the other person but on our narcissistic love for ourselves. Kiss our asses and we will love it, but you will never earn our respect.

Put ego aside (confirmation bias, acknowledgment, praise) and all that is left are the systems we use. If not, we will find ourselves surrounded by sheep, robots, and lunatics.

The Way (Process)

This is not a tribute to Justice Scalia. Let's be clear, I disagreed with many of his views. What this is a tribute for, is what we call in the East, the Way. Ruth Ginsburg saw past the differences and respected the Way Scalia approached things. Scalia admired the Way of Ginsburg. We on the outside focus too much on the destination. How we are driving is just as important as where we end up. Do you judge a driver by the way they drive or where they took you? Both matters. Driving terribly may get you somewhere quickly but you would not call that good driving. In fact, it can be dangerous — just as poor thinking can be dangerous. That is why it is called the Way, not the end. If we focus only on the end, we bypass everything else — at great peril.

After a controversial case where Justice Scalia was on the dissenting side of the decision, he quoted Bob Dylan and said to Ginsburg:

The times they are a-changing.

The First Rule of Anger

If someone said they hated you, would you fight them? No. If someone said something to disrespect you, would you fight them? Maybe. It is said, many of our underlying problems come from a lack of respect and a lack of communication. If we never actually understood what the other person was saying, and skipped ahead to their conclusion, we would be a society where we "like" or "love" but have no fundamental respect for one another. Perhaps we were never able to communicate clearly (that is if the other person even bothered to listen) because good communication wasn't valued. How much of our loneliness comes from feeling misunderstood? How much of our anger comes from feeling disrespected? Even by the ones we agree with? Especially by the ones that we love?

As a child, what was the first thing that made you mad? Not a reptilian-brain instinctive response, like hunger or pain, but a higher process. One that involves self-awareness and identity. Was it, not feeling loved? Or was it feeling disrespected? Like your parents treating you like a child (though you were one), or didn't take what you said as seriously as the words of adults? Not feeling loved may make you sad, which may eventually lead to anger, but you get disrespect right away, "Hey you are not respecting me. That sucks!"

And what do you do to piss off your parents? You mimic them. You can try to be cold, that may work after a while, but to get their goat right away, you learned the most efficient method is disrespect. The majority of people we deal with will not care if we like them; however, they will care if we respect them. Loved ones get stepped on all the time, we don't step on those who we respect.

Respect

People say the world needs love and sure I can agree with that. I also think it needs equal parts of respect. I have seen marriages last longer with respect, than a marriage based solely on love. If you have love and respect, well, hey, even better but respect is not second to love, it is its equal.

We love our family, our friends, our spouses, but how often have you said to yourself, "Wow, I really respect this person"? If we rarely say love, it is tenfolds rarer to say respect. We stopped valuing it the moment we stopped valuing reason. To "like" is to enjoy someone's similarities to us. To "love" is an attachment, an intense emotional affection. Both can be irrational. Respect has nothing to do with similarities or emotions, it is something that is earned, something we choose to give because we deeply admire their abilities and qualities. If a society becomes irrational, it no longer maintains the capacity for respect.

Without respect, people will demand fear. Without respect, we turn to worship. I must stress, this is why it is so valuable to cultivate intellect and respect. If we disagree, it is "odd" if we do not try to intimidate each other, if we still work together. If this has become the norm, perhaps it is we who need to better ourselves. Whether you love one and hate the other, Scalia and Ginsburg have given us a valuable lesson. Your love and respect for that lesson can and should be independent of your feelings towards them. Try it.

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