WEBSTER – On Thursday, March 30, the Northern Freedom Alliance invited Ryan Walsh to share about his experiences serving under conservative Supreme Court Justice Antonin Scalia, who died in 2016, and Walsh’s experience with constitutional conservatism and preservation of freedom for Americans.
Often used as a term to reference the values of Justice Scalia, or at times write him off, Walsh shared some history about the concept of “originalism,” or the idea that when a text is adopted into law, whether a constitutional context, statute, contract, or will, the law is what the words mean: The law is not what you want the words to mean, not even what the drafters intended them to mean but didn’t write them to mean, because that could reflect compromise. He said this is why the wording of a law is done carefully, because the words matter at the time they are adopted. If the word or the meaning of the word changes, it’s supposed to be up to the lawmakers to update the law by amending it and the Constitution has a provision that allows for its amendment.
Regarding his personal experience going into his first clerkship, Walsh stated that during school, on an exam there were straightforward right and wrong answers, and he said although he “worked for one of the good guys,” referring to Judge Diarmuid F. O’Scannlain, he was discouraged when he saw a “look behind the curtain” at the Ninth Circuit. When reflecting on some of the processes there, and how it seemed to be a lot of judges who had ideological agendas, he wondered what it was going to be like on the Supreme Court. Many of Scalia’s critics stated that he was “just a Republican, he’s using this originalism textualism theory to get what he wants.” Walsh said that he was happy to discover that Scalia welcomed debate, often playing “devil’s advocate” when debating cases behind closed doors to help his staff challenge any possible biases, and Walsh also said he, “saw him seriously wrestle with the legal questions that were before him and that was so encouraging, because we as lawyers, and you all as maybe litigants someday … I hope not … but you expect to go into a courtroom and get a fair shake.”
Walsh also spoke of the friendship between Scalia and Ruth Bader Ginsberg, who often was on the opposite spectrum of personal beliefs and considered a liberal and progressive. Despite this, Scalia and Ginsberg maintained a personal friendship that went all the way back to when they were both judges on the Federal Court of Appeals for the D.C. Circuit. Walsh said they would circulate their draft opinions to each other before they put them out and challenge each other to tell them why they are wrong. He said, “There was tremendous respect between the two of them, and what’s most important to me about it is that neither of them pulled punches. There’s this idea that we sort of have to tolerate everybody’s view and just accept it, even though you have a different view … Justice Ginsberg and Justice Scalia thought, counsel in favor of respectful disagreement, challenge each other, say the other person is wrong when you think the other person is wrong Don’t disparage them, don’t call names, but if you think they’re wrong, don’t pull a punch. If you’re pulling a punch you’re not treating them fairly. You’re not treating them in accord with the dignity they have as, as human beings created by God with reason. And I think that’s the most beautiful thing about their friendship, is even though they saw the world so differently, they didn’t cancel each other, so to speak, their friendship only grew closer over the years.”
At the end of his presentation, audience members had the opportunity to ask questions of Walsh. Here are a few questions and responses:
Q: We know Trump was indicted today, and I just want to know your opinion. It seems to me that there's two levels of justice, one applied to one person, one applied to the next.
A: It is true that legal … the law can be weaponized by politicians on both sides. And there's a risk when that happens, because justice is supposed to be blind. And prosecutors are supposed to apply the same set of principles, whether you're rich or poor, black or white, conservative or liberal. And, when it seems that a prosecutor is acting politically, people have the right to sort of question what's really going on, what are the true motives? And they have done that throughout history. You know, there have been political prosecutions brought by both Rs and Ds and they are definitely perceived differently than the usual case.
Q: Is there any recourse when an elected or appointed judge is legislating from the bench?
A: When judges start stepping outside their lane and acting like executive officials or lawmakers, that's a problem. That means the system isn't working as it should. And where there are elections, where the judges or justices are elected, you know, as I think Dan Kelly must have told you, he often says, “The people are the boss and every 10 years they get to submit a report card and the people decide whether to keep you or not.” In the federal system, there is there is the ability of Congress to impeach and remove; that almost never happens. But there is there is a subtler power that keeps judges honest, I would say, and that is shame. You know, if you if you are writing an opinion, if Justice Scalia had told us, “We're going to hold X in this case,” we would say, “Seriously? You can't do that because that's wrong.” And he's like, “No, it's not wrong.” “Yes, it is. I just showed it to you. It's wrong.” And he would be like, “You're right, I can't do that.” So that's the power of dissents and separate opinions. The majority opinion is not the voice of God. There are people on the court, we're going to say you are dead wrong, and they're going to attack, and those dissents are by former justices and by current justices; those can be very passionate and very devastating. I think judges know that they can only go so far. They can only go so far in their inventiveness because they keep each other honest.”
Q: There are some litigations which are ruling about the COVID vaccine mandates, and the COVID vaccine adverse effects and the hospital treatment of people. Are you familiar with any of those growing, like mass tort litigations? And if so, do you have an opinion as to whether or not any of them are going to go anywhere?
A: I don't have any awareness of the mass tort actions. I have some familiarity with the religious liberty cases. I had the privilege of teaching a religious liberty seminar at the University of Chicago in the fall. There are questions about, you know, what's the particular vaccine that someone's objecting to? What religion do they belong to? What does that religion generally say about that kind of vaccine? What other vaccines has the person taken? The government will argue while you've taken other vaccines, and what's interesting is religious liberty claimants, people who are making religious liberty defenses, have very strong grounds for a lot of different arguments. You know, religious liberty doctrine is actually quite robust in the United States under Supreme Court doctrine, and there are very few cases where courts are willing to say, “I don't think you understand your faith correctly,” because the Supreme Court has said that as soon as judges start doing that, they're actually violating the First Amendment by establishing a church. They're now getting involved in a church dispute and saying, “No, you've misread the Bible, or you misunderstand that.” And courts are very uncomfortable doing that, which, to a lot of religious liberty defenders is great news, because all you have to do, basically, is prove that you're not lying, you have to have a sincerely held belief. The test is basically, “Are you lying to the court? Are you trying to commit a fraud on the court?” If you are, which, by the way, happens all the time because religious liberty applies in the prisons, and there are all kinds of religions that prisoners will come up with to get better food or get special treatment. It's a real thing. They'll say, ‘Well, I belong to a religion that requires me to be served prime rib for dinner every night.’ And so, courts do have to look into sincerity. So that comes up in vaccine cases, it comes up in every case.”
Walsh is a graduate of Webster High School, and currently works for the law offices of Eimer Stahl in Chicago and Madison. Walsh previously served as Wisconsin’s chief deputy solicitor general, where he ran the state’s highest-stakes cases. He also is served, as mentioned earlier, on the U.S. Court of Appeals for the Ninth Circuit for Judge Diarmuid F. O’Scannlain.
