Ginsburg and Scalia on Gridlock

September 16th, 2014

As I discuss in Gridlock and Executive Power, one of the key differences between the majority, authored by Justice Breyer, and the faux-concurring opinion by Justice Scalia, was on the role of intransigence. Scalia viewed gridlock as a “feature, not a bug” of our constitutional order. Breyer would read the Constitution to promote a vigorous, efficient government.

Here is Noel Canning in meme form:



Recently, both Justices Scalia and Ginsburg weighed in on this matter.

During remarks at the ConSource Constitution Day Celebration (hosted by my colleague Julie Silverbrook), Justice Ginsburg faulted the fact that our gridlocked Congress can’t pass a law to fix Hobby Lobby. Or, more precisely, it seems she would repeal, in part, RFRA:

Ginsburg went on to say that a ruling like Burwell v. Hobby Lobby decided in June, which allowed closely held companies to deny contraception coverage to employees, “is also something Congress would be able to fix.” But, she said, Congress as it stands now “doesn’t pass anything.”

This is wrong on several levels. The fact that Congress doesn’t pass anything is a symptom of the fact that there isn’t consensus. The Notorious RBG presumes that the natural state is for Congress to pass laws she likes (like Lilly Ledbetter, for example). To the contrary, when this agreement doesn’t exist, the default option is to maintain the status quo. There is no movement to fix RFRA.

From the opposite perspective, Justice Scalia repeats a point he has made many times before, and offers an effective rebuttal to his good friend:

“The Europeans look at our system and you know, (legislation) passes one house and it doesn’t pass the other, which is in control of a different party,” he said. “Or it passes both and gets vetoed by the president.”

He said people tend to scoff at such gridlock without recognizing its purpose.

“I hate to hear Americans going around grousing about gridlock,” he explained. “That’s the design of this system, that only really good legislation that has substantial support in the country will get through.”

Scalia has it exactly right. Hobby Lobby is a controversial opinion, no doubt. Some like it. Some don’t. We have a divided populace, so in the absence of agreement, we maintain the status quo–a law introduced in the House by Chuck Schumer and signed into law by President Clinton.