Antonin Scalia

One, they, they think of the, the Constitution and, and when they think of the Constitution the first thing they think about, uh, very often are the rights in the Constitution, right? The Bill of Rights.

Um, but as, uh, as Justice Scalia, uh, once said, uh, that's, you know, every tinpot dictatorship in world history has had, or at least, uh, in, in recent history has had something like a bill of rights since we created one.

The difference between us and the Soviet Union and North Korea today and so many other places around the world is that we actually have a structure of government that makes sure that those bill, those rights in the Bill of Rights are real.

Um, you've got, you know, uh, different branches of government that are playing off one against another.

And it wasn't.

In fact, uh, I won't have this quote exactly right, but I remember Antonin Scalia-

Mm

...

So just to back up, Employment Division v. Smith was, uh, this is my bias showing through.

Everyone knows how I feel about Employment Division v. Smith, Scalia's infamous decision that guts the free exercise clause to essentially say, if you're making a free exercise clause claim against a neutral law of general applicability, you're going to lose.

So then it beca- the question became, what's a neutral law of general applicability? Because if it wasn't a neutral law of general applicability, then you could have strict scrutiny.

Or if you had a hybrid claim where you could also make a free spe-speech claim, you could have strict scrutiny, which is why all of a sudden, bingo, presto, a whole bunch of free exercise claims became free speech claims in litigation because you had greater, easier access to strict s- to strict scrutiny.

Yes.

And, and as I said, it's, it's him and Scalia.

How did he react to you writing this? I mean, this is a, this is not just a, a professor somewhere in...

writing.

I hope enough people care about it that it's something that we will recover.

Because I, I think there's a reason, for instance, at least among the p- people that I roll with, that we laud Ruth Bader Ginsburg and Scalia, right? We look at these friendships with radically different, as polarized as possible politics, of people who would still go to the opera together and still love to sit down together and were able to.

That's not that long ago, and I think most people do look up to that as something like we should be able to do this.

Yeah.

There is a 1987 case about.

the criminal contempt power where the majority said spring court the ability to punish disobedience to judicial orders is regarded as essential to ensuring that the judiciary has a means to vindicate its own authority without complete dependence on other branches Justice Scalia wrote a strong dissent there.

So that was 1987.

So where the current court would align on that question is going to be very difficult.

the criminal contempt power where the majority said, Spring Court, the ability to punish disobedience to judicial orders is regarded as essential to ensuring that the judiciary has a means to vindicate its own authority without complete dependence on other branches.

But Justice Scalia wrote a strong dissent there.

So that was 1987.

So where the current court would align on that question is going to be very difficult.

You know, Joe Biden put pro-labor people in charge of the Labor Department.

Trump, in both his terms, I mean, his last term, he put Scalia's son in charge of the Labor Department, a professional union buster.

They're not multimillionaires.

James, I