When Seventh Circuit Court of Appeals Judge Amy Coney Barrett’s critics are not attacking her faith or originalism, one of the most common threads of criticism against her is the fact that she was mentored by the late Supreme Court Justice Antonin Scalia.
While attacks on Barrett are not unexpected — especially given the overwhelmingly contentious nature of proceedings the last time President Donald Trump nominated someone to be on the Supreme Court — the renewed attacks on Scalia should certainly raise some eyebrows.
After all, whether you agree or disagree with Scalia’s conservatism, it’s impossible to say that the man didn’t have a brilliant mind or failed to see the greatness in America. If those two qualities rubbed off on Barrett even a bit, there’s no doubt that she’s eminently qualified.
Those fighting to keep Barrett from the Supreme Court bench, however, could probably use a reminder about what made Scalia such a powerful and effective justice.
And there are few better reminders of that than the powerful address Scalia gave nine years today ago during a Senate Judiciary Committee hearing on “The Role of Judges Under the Constitution of the United States.”
“So when I speak to [students], the first point I make — and I think it is even a little more fundamental than the one that [Associate Supreme Court Justice Stephen Breyer] has just put forward — I ask them, ‘What do you think is the reason that America is such a free country?'” Scalia said.
“What is it in our Constitution that makes us what we are?”
“The response I will get, and you will get this from almost any American,” he said, “would be freedom of speech, freedom of the press, no unreasonable searches and seizures, no quartering of troops in homes — those marvelous provisions of the Bill of Rights.”
Scalia then said that if you believe the Bill of Rights is what separates America from other countries, “you are crazy.” Scalia proceeded to point out that the “evil empire” of the USSR also had a bill of rights, one that was actually “much better than ours.”
“So the real key to the distinctiveness of America is the structure of our government,” Scalia said.
“One part of it, of course, is the independence of the judiciary, but there is a lot more. There are very few countries in the world, for example, that have a bicameral legislature. Oh, England has a House of Lords — for the time being — but the House of Lords has no substantial power. They can just make the Commons pass a bill a second time. France has a senate, it’s honorific. Italy has a senate, it’s honorific. Very few countries have two separate bodies in the legislature equally powerful. That’s a lot of trouble, as you gentlemen doubtless know, to get the same language through two different bodies elected in a different fashion.”
But it is that very “gridlock” that so often occurs between the equally powerful Senate and the House that makes American governance so unique.
“And I hear Americans saying this nowadays, and there is a lot of that going around,” Scalia said. “They talk about a dysfunctional government because there is disagreement. And the Framers would have said, ‘Yes, that is exactly the way we set it up. We wanted this to be power contradicting power because the main ill that besets us,’ as Hamilton said in The Federalist when he talked about a separate Senate, he said, ‘Yes it seems inconvenient, but inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad.’ This is 1787. He didn’t know what an excess of legislation was.
“So unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock, which the Framers believed would be the main protection of minorities — the main protection. If a bill is about to pass that really comes down hard on some minority, they think it terribly unfair, it doesn’t take much to throw a monkey wrench into this complex system. So Americans should appreciate that, and they should learn to love the gridlock. It is there for a reason — so that the legislation that gets out will be good legislation.”
Scalia’s remarks stress the importance of the Supreme Court’s role in event of such massive “gridlocks.”
And few gridlocks will be more important or consequential than the upcoming presidential election, in case there are any shenanigans or other thorny legal issues that need to be resolved or decided on.
Who could’ve guess that nine years ago today, Scalia would present the perfect argument for why Amy Coney Barrett needs to be on the Supreme Court?