In many ways, the Supreme Court is separate from the other two branches of the United States government: Members are appointed rather than elected, serve lifelong terms and are not allowed to fundraise — but perhaps one of the greatest distinctions dividing the court from Capitol Hill and the White House is its members’ love of opera.
Supreme Court Justice Ruth Bader Ginsburg has appeared three times in the Washington National Opera; Justices Antonin Scalia, Anthony Kennedy and Stephen Breyer have also made appearances. Though the justices may have their disagreements inside the court, their love of performance brings them together not just as colleagues, but also as friends.
And in Ginsburg’s view, it is this difference that gives the court the humanist element that she believes so often evades the other two branches of government.
“It is collegiality of this sort that makes it possible for the court to do the ever-challenging work the Constitution and Congress assigned to us, without the fierce partisanship that sometimes mars the operation of the political branches of government,” Ginsburg said.
Ginsburg, the first lecturer in Week Six’s theme of “Crime and Punishment,” combined her loves of opera and the law in a presentation that included six performers from the Chautauqua Opera Company’s Young Artists program.
Ginsburg said she always wanted to sing opera, but her limited vocal range was an obstacle from an early age. Her elementary school teacher called her “a sparrow, not a robin,” and instructed that Ginsburg mouth the words to a school music recital rather than sing them.
But that hasn’t stopped Ginsburg from envisioning herself as a famous opera singer.
“In my dreams, I can be a great diva,” she said.
Ginsburg said it isn’t uncommon to find representations of law in the performing arts.
“Law does have a palpable role in opera plots,” Ginsburg said. “And death administered by the state for a capital crime is portrayed with chilling effect in Jake Heggie’s Dead Man Walking.”
Dead Man Walking, an opera that premiered in San Francisco in 2000, is based on the true story of Sister Helen Prejean, a nun who became a spiritual adviser to a prisoner on death row.
“I wish that remarkable opera could be seen by everyone in the United States who thinks about capital punishment for crime,” Ginsburg said.
On the Amp stage, Tatiana Ogan, accompanied by Carol Rausch, performed a principal aria from Dead Man Walking, in which Sister Helen is on her way to Louisiana’s Angola prison to meet the inmate, a convicted murderer.
Jails are common settings in opera, Ginsburg said. While some characters are thrown into prison, others try to escape or avoid jail through devious means. Nowhere else is this evidenced more than in the opera Carmen, in which the opera’s namesake attempts to seduce her way out of going to prison.
Meaghan Deiter, mezzo, performed the opera’s “Seguidilla” aria, which Ginsburg called “the best-known plea bargain in opera.” In the scene, Carmen, after a fight with a woman at the cigarette factory, tricks Don José into meeting her at her friend’s inn.
Perhaps the most well-known opera about the law is Trial by Jury, a satirical opera written by Gilbert and Sullivan in 1875.
Baritone Clayton Brown and a chorus of singers performed “The Judge’s Song,” in which Brown’s character explains how he became a judge: “So I fell in love with a rich attorney’s elderly, ugly daughter!”
Ginsburg used the final operatic performance of her lecture to illustrate what she called one of the greatest debates among members of the Supreme Court: the debate between those who prefer a “textualist,” or strict interpretation of the Constitution, versus those who believe in a “purposive,” or loose interpretation.
“Pirates of Penzance contains the best illustration I know of the distinction between textualist and purposive construction of the law,” Ginsburg said.
The opera features Frederic, who was accidentally apprenticed to a pirate instead of a pilot by a nurse who was hard of hearing. He is contracted to the pirates until his 21st birthday. Unfortunately for him, his birthday falls on Feb. 29 — leap day. John Riesen, playing Frederic, sang “When You Had Left our Pirate Fold (A Paradox)” on the Amp stage.
“If you go by the strict text, Frederic is indeed a little boy of 5,” Ginsburg said. “But, if you take a purposive view of the law, he looks like he’s 21. And that carries out the meaning of the contract, I think, far better than the literal, textual interpretation.”
Ginsburg, herself a purposive-interpretation proponent of the Constitution, ended with an example of an opera depicting Ginsburg and Justice Antonin Scalia as the main characters.
Derrick Wang, a recent graduate of the University of Maryland Francis King Carey School of Law, has written a comical opera titled Scalia/Ginsburg, weaving into the text the fundamental argument between the two justices that influences their every decision.
“Mr. Justice Scalia, you are searching in vain for a bright line solution to a problem that isn’t so easy to solve,” Ginsburg’s character says in the opera. “But the beautiful thing about our Constitution is that like our society, it can evolve.”
Q: I’ve taken note of the fact, Justice, that you’ve talked about some restraint on behalf of the court in counting on Congress to rectify situations that you think are problematic. You’ve worked that into some of your opinions, actually. So do you think that it is the Congress’s role to reverse and repair the issues connected to Citizens United [v. Federal Election Commission]?
A: The short answer is no, it is not Congress’s role. It is Congress’s role whenever we’re dealing with a statute, a law passed by Congress. So, for example, I thought the Court misconstrued our principal anti-discrimination in employment law, Title VII. I thought the Court got it wrong in Lilly Ledbetter’s case. I suggested in my opinion that Congress should amend the law to say what I thought Congress meant all along, and Congress did that. So if the Court errs on the question of statutory interpretation, Congress has the last word. Congress can correct it. But under our Constitution, when the Supreme Court says what the Constitution means — in this case, Citizens United, the First Amendment right of freedom of speech — when the Court gets the constitutional decision wrong, there are only two ways to change it. One, the Court can see the error of its ways and overrule the decision. And there have been a number of instances of that in the history of the United States. Think of the overruling of the civil rights cases in 1883 and [Plessy v. Ferguson] some years later, by [Brown v. Board of Education]. But if the Court doesn’t see the error of its ways and adheres to its precedent, the only other route is a constitutional amendment, and our Constitution is powerfully hard to amend. That’s why we have had only 27 amendments in the history of the country, and the first 10 were adopted very early on. So if the Court makes a mistake of constitutional dimension, short of amending the Constitution is only the Court to correct its own errors, and that’s what dissenters hope for. They’re writing for a future day. You can think of the great dissents of [Justice Oliver Wendell] Holmes and [Justice Louis] Brandeis around the time of World War I about free speech. All of those are now the law of the land.
Q: The Supreme Court is charged with making decisions based on the Constitution. I understand, however, that contemporary culture factors are often taken into consideration — in addition to the Constitution — when decisions are rendered. Is this true, and can you give us examples?
A: I would not say in addition to the Constitution, but in aid of a proper understanding of the Constitution. Let me give you just one example: After the Civil War, three amendments were added to the Constitution. The 14th Amendment contains one of my favorite clauses, it says, “No state shall deny to any person the equal protection of the laws.” That was adopted in 1868. A woman, Virginia Minor, read the equal protection clause and said, “Well, I’m a person and I’m a citizen. I should be allowed the most fundamental right of citizenship: that is, to vote for the people who will govern.” And the Court in the early 1870s said, “Yes, we recognize that you are a person, and you are also a citizen of the U.S.A., but so, too, are children. And no one would urge that children should have the right to vote. That was in 1868. We didn’t get the 19th Amendment until 1920, but my view of the 14th Amendment’s equal protection clause is that it was meant to govern society as society grows and evolves from one generation to the next, so today I think it would be unthinkable to say that women are not protected by the Constitution in the same way as men are. Today, women are citizens of equal stature, equal in rights and responsibilities. As a great constitutional law professor, Paul Freund, once put it, “The Court should never be influenced by the weather of the day, but it is inevitably influenced by the climate of the era.” And the writers of the Constitution were wise enough to put in such grandly general clauses as due process of law, equal protection of the laws, that have growth potential.
Q: This questioner contends that you have made a statement that the United States Constitution is inferior to a number of others around the world. Whether that’s an accurate statement or not, can you comment on other constitutions in terms of their merits, and can you identify some particular changes you think would be valuable to our own?
A: I have not said our Constitution is inferior to any in the world. Indeed, I revere the Constitution. I carry it around with me wherever I am in the world. The question was put to me when I was in Egypt a year and a half ago, when Egypt was about to embark on process of writing a new constitution. I explained that ours was a late-18th-century constitution, that the original Constitution did not contain a Bill of Rights, but that modern constitutions, and I gave the constitution of South Africa as an example, have as the very first article a statement of the rights that belong to every person by virtue of being human, and then the succeeding articles establish a system of government to uphold and defend those basic human rights. That seems to me a right pattern to follow for a 21st-century constitution, but our Constitution has served us well, because its grand clauses, I think, were written so that they would be interpreted to fit the society as it changes over time, and I in no way meant to put down a constitution that has been a model for the world — one institution of which I am very thankful. The United States was the first country to treat a constitution as real law, so we review laws — ordinary laws — for compatibility with the Constitution. The idea is that the Constitution is the highest law in the land, but it is real law. It’s law that’s effective here and now. And many modern constitutions that have wonderful grants of human rights — those statements are aspirational. They are not immediately enforceable, but it is the aspiration that over time, society will come to put those rights into effect. But the notion of a constitution being real law, and not aspirational law, is something that the United States … gave to the world. In fact, until after World War II, we were one of the few countries that engaged in judicial review for constitutionality. In most systems in the world, parliament was considered supreme. Parliament said what the law is, and the court was simply to apply the law as parliament understood it. People saw, as a result of World War II, that popularly elected representatives cannot always be trusted to uphold the society’s most fundamental values. So Germany and many other European countries set up a constitutional court for the first time that would have the power to review laws passed by the parliament for compatibility with the fundamental instrument of government. So my answer is: I think our Constitution has been a model for the world. I am very proud of it. I suspect if the Founding Fathers were alive today — well, there would be Founding Mothers as well, for one thing — but that they would also put human rights first, and not last.
Q: So, given the observation that you made within that last statement, how do you feel about the process of election of judges as opposed to appointments?
A: Many of our states, in fact most, have elections at least at some level. Thank goodness I belong to the federal judicial system, and there the Founding Fathers were wise indeed, and they wrote, “The judges should hold their office during good behavior.” So, as long as I behave well, I can remain on the Court. There’s no way to get us out other than impeachment. But in many of our states, the judges are elected, and we can understand the origins of that. The colonists didn’t particularly trust the British judges, so they wanted to be part of the system of justice. That’s why juries were so popular in the United States, and the election of judges — I will be frank to say that I think it is a dreadful way to choose people for judicial office. Judges are to be impartial. They are to judge without fear or favor. They are not to be beholden to any group. But it may be a little hard, if a group of lawyers has funded your campaign, for you to be impartial, or even if you are, to project the appearance of being impartial. So I think the trend has been, in recent years, to appointment rather than election of judges. In New York state, for example, judges of the highest court — the Court of Appeals — are appointed. The judges in lower courts are still elected. New York, by the way, turns everything upside down so that the trial court is called a “supreme court” in this state, and the highest court is called the “Court of Appeals.”
Q: So, back to the point about your behavior. Will the Supreme Court adopt and agree to be bound by the canons of the code of conduct for the United States judges?
A: The code of conduct guiding U.S. judges is not technically binding on Supreme Court justices. But we choose to follow it. The Judicial Conference [of the United States] has a committee on judicial ethics that will give advisory opinions to judges who have questions about whether something is ethical. I always check with that committee, and I’ll give you one example: I received in the mail some years ago a check for $100,000, and it was sent by a foundation that said, “Our mission is to choose one person a year that we think is a good citizen, and so we’ve chosen you.” Well, the first thing I did was return the check. And then I asked the committee, “Suppose I designate 10 charities to receive $10,000 each? Would that be acceptable?” And the answer was, “That would be alright” — because I had done nothing for the foundation to earn that award. And so I picked 10 people that I respected very much and asked each one, “If you had $10,000 to give out, what charity would you pick?” But that’s an example of how I’m insulated by that committee. There is also a rule … that judges … may not speak at fundraising events. Now, that one I don’t have to ask the committee about, but it has enabled me to avoid countless invitations.
Q: We have undergraduate students from [the University of Buffalo, State University of New York] as part of a program through the law school. Could you give them a brief explanation of textualism, and why you disagree with that position?
A: Textualism is — just as the word expresses — it is interpretation of the words of the statute. People who take that view are concerned that if judges don’t adhere rigidly to the words of the law, then they will be making it up, they will be projecting their own will, and not the will of the legislature. And that’s a dangerous thing, because no one elected us to pass laws. That’s, I think, the view that textualists would give … to explain why they think that the text itself must be what’s followed. My view is that … the laws that Congress passes in great quantity are not always clear and certain. Sometimes there are unintended ambiguities. Sometimes they are deliberate, because it was a political hot potato and the legislature wanted to pass the book to the courts. So I try to follow what I think was Congress’s purpose in enacting the law. So it’s the words that they use informed by the purpose of what they were trying to do, and so that’s why I disagree with a strict textualist approach. I do recognize that it is the legislature’s call, and that’s why I try to fathom what the legislature was trying to do, what it really wanted.
Q: So I’m not sure about the propriety of this question, but I’m sure you get it all the time. What can you tell us about the deliberations with your peers over Bush v. Gore?
A: They were exhausting. The court granted review on a Saturday, briefs were filed on a Sunday, the case was argued on Monday and opinions were out Tuesday evening. So it was a marathon for all of us. I was not exhilarated by the decision, but I was surely exhausted. It was my view, and I can be frank to say this because I dissented, I thought the Court should never have taken that case. I know so many of the questions we get are really what I call “who-decides” questions, and that one I thought the Constitution provided: In case Florida didn’t settle it, then it would be the House of Representatives. The Constitution empowers the House to determine contested elections. I should add to that that I don’t think the end result would have been any different — because the House then had a strong Republican majority — so Bush would have been our president in any event, but it would have been decided later rather than sooner.
Q: Was opera an art form in your home as you were growing up? And what was the first opera you saw, and what made you like it so much?
A: As a child, I did listen to the Met’s Saturday afternoon broadcasts. But I was turned on to opera when I was 11 by a great man — his name was Dean Dixon, he was a conductor. He wanted children to appreciate music. He had a symphony orchestra — most of the people in it were children from Harlem. He took around to high schools in the different boroughs an opera, which he would abbreviate to one hour; he would narrate in between. And there was bare staging, no costumes. So at a high school in Brooklyn, N.Y., I saw an abbreviated performance of [La] Gioconda — not a likely first opera for a child. But I was so taken with the beauty of the music and the high drama, and I have loved opera ever since. In my high school years, I would attend the New York City Opera’s rehearsals in the [New York] City Center, and now, whenever I’ve done my homework the night before, I attend the dress rehearsals of the Washington National Opera.
—Transcribed by Kelsey Burritt