Thank you for the warm welcome. It’s great to be back with the Federalist Society and to be in such esteemed, august company. I think at least half the audience tonight are federal judges—and, God willing, the other half will be soon.
For all you hopeful jurists, I’ll give you an inside tip on the easiest way to become a federal judge: be sure your law-school roommate is a future U.S. senator.
Welcome back to Washington for the first time in two years. But before I go any further, a land acknowledgement is called for. We celebrate tonight on ancestral land stolen… from the Washington Redskins. Maybe Neil Gorsuch can help them get it back!
Unfortunately, our nation’s capital is run by power-hungry busybodies who still insist on mask mandates. Of course, you can remove your mask while drinking, which I noticed many of you did constantly during the cocktail reception. A clever anti-masking strategy. Take that, Fauci.
I have to say, I’m impressed to see you still awake at this hour and blood alcohol level. I expected most of you to look like Joe Biden at a climate-change conference. But let’s be fair: who wouldn’t fall asleep at a climate-change conference? I know I would, which might be the only thing Sleepy Joe and I have in common—besides the fact that both our boys like to finger paint.
We’re honored to have several Supreme Court justices with us this evening.
I especially want to recognize our newest justice, even though she wasn’t able to make it: Amy Coney Barrett. I was pleased when President Trump nominated Justice Barrett and pleased to support her nomination in the Senate. Even though, as you may recall, I was actually on the former president’s shortlist for what became Justice Barrett’s seat. When he called to tell me, he also said, “But Tom, you’ve got such a great job, why would you want to be on this boring Court?” I said, “Sir, I’ll only agree to be on your list if you promise not to pick me.” He responded, “Tom, I’m only adding you if you promise not to take it.” I guess the president thought I should stick to electoral politics given my famously warm and approachable manner.
It’s OK that I wasn’t the president’s first choice for the Court, but I have to say, it hurt a little when I learned that I wasn’t the first choice to speak tonight, either. In fact, I was the fifth choice:
John Roberts wasn’t available. Apparently, he had a prior commitment at the American Constitution Society.
Strangely to me, but I guess in the spirit of open debate, they invited Sheldon Whitehouse. But he kept ranting and raving about piercing the inner circle of the Illuminati, which seemed kind of weird.
They also asked Kamala Harris, but she said sitting in a room with 2,000 lawyers would bring back bad memories of the bar exam—both times she took it.
And despite the Federalist Society’s devotion to our republican form of government, they even considered inviting true royalty. But Joe Manchin wasn’t available either.
So, alas, you’re stuck with me. But I’m still grateful to be here. Just as I’m grateful for what the Federalist Society has provided to so many people over the years: learned scholarship, free and spirited inquiry, friends and mentors.
And that’s not all. Nine years ago, after I spoke at another Federalist Society event, a pretty girl came up to me and gave me her phone number. And she’s with us tonight: my wonderful wife, Anna Cotton—herself a former president of her Federalist Society student chapter. So I say to all you single appellate-law nerds in the room, there’s still hope for you. Don’t miss the afterparty.
The Federalist Society’s influence and importance extends far beyond matchmaking. For almost four decades, you’ve defended our constitutional system of representative government with limited and separated powers. These are not abstractions, but rather the lifeblood of our liberty. As Justice Scalia, whom we honor tonight, was fond of saying, every banana republic has a Bill of Rights, but it’s nothing more than a parchment barrier without free and fair elections, without separated powers, without the rule of law, and without an independent judiciary to uphold it.
Our rights—the rights of all mankind—of course derive from the natural equality of man. That is the “electric cord” in the Declaration of Independence, as Abraham Lincoln put it, “the father of all moral principle” that binds us together as “blood of the blood and flesh of the flesh,” irrespective of our race or our origin.
But the Declaration doesn’t just proclaim our rights; it also contains lessons about how to preserve and protect them. Take a look at the bill of particulars. Our Founders accused King George of interfering with elections and the operation of legislatures—representative government—abusing his power—limited government—and encroaching on the three departments of government—the separation of powers.
Consider even that the Declaration speaks of God four times, once as divine Providence, and once each as lawgiver, executive, and judge. The political trinity, if you will.
This is why Lincoln considered the Declaration the apple of gold sitting inside the Constitution’s frame of silver. That electric cord is both the chief end of our government and the foundational principle of its many institutions.
So it’s not surprising, I suppose, at a time when a tiny but vocal and powerful minority disputes these things that the Federalist Society has come under intense attack. Few organizations, after all, have been more dedicated and effective champions of our founding principles—something America needs more than ever today.
This radical minority would have us believe that America was founded on a lie, that America is rotten to its core and from its start. They would have us believe that America was not founded in 1776, or even in 1620, when the Pilgrims wrote the Mayflower Compact. Rather, they contend that our nation was conceived a year earlier, in 1619, and not in liberty, but in bondage. Not in equality, but in racism.
Ironically, these so-called anti-racists sound like no one so much as John Calhoun, Roger Taney, and Jefferson Davis. I could start a game of “Who Said It?” and I’m confident that you couldn’t distinguish between quotes from Confederates like Jeff Davis and today’s woke left. But why bother? One of these charlatans, a man named Henry Rodgers, who now calls himself Ibram X. Kendi, entitled his book on American history Stamped from the Beginning, a verbatim quote from Jefferson Davis.
After last week’s election, it’s dawned on a few sane liberals that making common cause with Jeff Davis and John Calhoun may not be a recipe for success. I’ve chuckled at CNN’s take on critical race theory, which reminds me of the old joke about lawyers using weak and contradictory arguments in the alternative: he’s not my dog, he didn’t bite you, you kicked him first. With critical race theory, it’s “critical race theory doesn’t exist, it’s not taught in schools, you’re racist for trying to take it out of schools.”
But we can still see all around us the progressive left’s assault on our institutions, which is really an assault on our Declaration and Constitution. When they accuse America of “systemic racism,” what they mean most is our system of government. When they demand “structural change,” what they most want to change is the structure of our government.
This audience is probably familiar with the left’s assault on our judiciary. The left still aspires to pack the Supreme Court, with all the irreversible damage that would do to the Court’s legitimacy, the Constitution, and the rule of law. Joe Biden’s commission may have thus far frowned on Court-packing, but it’s ominous that he felt compelled to create it in the first place.
Meanwhile, Democratic politicians openly threaten the justices if they don’t get their preferred outcomes. Chuck Schumer stood outside the Court last year and yelled, “You have unleashed the whirlwind and you will pay the price,” later adding, “you won’t know what hit you if you go forward with these awful decisions.” Before a gun-rights case, Sheldon Whitehouse warned the court that it should “heal itself” or be “restructured.”
Their latest target is something called the “shadow docket,” which sounds nefarious but is really nothing more than how the court handles emergency appeals and routine orders. Perhaps the left should reflect on why so many of their cases are so weak that they don’t even merit full briefing and argument.
And thank goodness the Court issues these rulings. On six occasions, the Court has intervened to stop liberal governors from shutting down worship services while allowing businesses like liquor stores and strip clubs to remain open. Thanks to the Thomas Court, religious liberty was protected … I’m sorry, did I say the “Thomas Court”? That was a slip of the tongue. Of course, I meant the “Roberts Court.” Though it was strange when I saw Justice Thomas earlier and he said very intensely, “Look at me, senator. Look at me. I’m the captain now."
The Court is far from the only institution under assault by the left. Take mine, the Senate. The progressive left loathes the Senate and condemns it, of course, as inherently racist. How dare benighted Wyoming have the same number of senators as enlightened California? Bernie Sanders and Pat Leahy couldn’t be reached for comment—nor, for that matter, could Delaware’s own, Joe Biden.
This, by the way, is what DC statehood is about. The left doesn’t care about congressional representation for this city; if they did, they could’ve long ago tried to return the city to Maryland, just as happened with the Virginia part of the city in 1846. All they really want is two new Democratic senators in perpetuity. For some on the left, though, two new Democratic senators is small ball. Just last year, the Harvard Law Review published an article calling for Democrats to admit each of Washington’s 127 neighborhoods as its own state. All you editors here tonight, you should hang your heads in shame.
And if they can’t change the number of senators, the left wants to alter the Senate’s character by eliminating the right of unlimited debate, also known as the filibuster. Strangely, they weren’t singing this tune when Donald Trump and Mitch McConnell were in charge. But now the progressive left wants to go for broke, using the Democrats’ very tiny majorities—and, I promise you, very fleeting majorities—to destroy our constitutional structures, customs, and norms.
The progressive left also detests that close cousin of the Senate: the Electoral College. Liberals like Dick Durbin started targeting it twenty years ago, just as the Democrats started their leftward lurch. Now, a handful of Democratic-run states have adopted something called the National Popular Vote Interstate Compact, an unconstitutional scheme to undermine the Electoral College.
The current Assistant Attorney General for National Security even published an article entitled, “The Electoral College is a National Security Threat.” As Orwell said, only an intellectual could believe something so stupid. Or, apparently, a senior official at Joe Biden’s Justice Department.
These assaults on the Senate and the Electoral College are also attacks on the states and our federalist system, which naturally the left also considers, yes, you guessed it, racist. In recent months, the Senate has voted not once, not twice, but three times on legislation to take over election administration from all fifty states, all on the grounds that certain states are suppressing the vote, even though every election seems to set new turnout records. Failing in the Senate, the left turned to the Attorney General, who has compliantly sued Georgia and Texas for the grave crime of making it easier to vote than Joe Biden’s Delaware or Chuck Schumer’s New York. I’ve said it before, I’ll say it again: Merrick Garland should resign in disgrace. Thank God he’s not on the Supreme Court.
Judge Garland’s baseless lawsuits also undermine the rule of law, perhaps the most fundamental institution alongside our Constitution. The rule of law implies equality before the law, which points back to our natural equality. Yet the progressive left is willing to jettison the rule of law when it doesn’t serve its policy goals or achieve its preferred social outcomes. Loan forgiveness for farmers, so long as they’re not white. Radical, George Soros-backed prosecutors simply refuse to enforce the law and, as a result, unleash crime waves in their cities. Indefinite detention for those merely charged with trespass in the January 6 riot, while violent BLM insurrectionists get off scot free—or get bailed out by Kamala Harris.
Unfortunately, the corporate media and increasingly these days the corporate boardroom are aiding the progressive left in its assault on our institutions. Those who criticize or oppose the left’s radical or silly ideas are often silenced or cancelled. If you say, for instance, that the Wuhan coronavirus just might have come from the Wuhan lab where they research coronaviruses—crazy, I know—the corporate media will condemn you for peddling “conspiracy theories” and “debunked lies.”
The list goes on and on. Cowardly college administrators disinviting speakers. Amazon removing books. Social-media companies deplatforming conservatives, while conspiring with corporate media to suppress information about Hunter Biden that’s unflattering—though is there any other kind? These companies suggested it was “foreign disinformation.” I guess they would know, since the very same media companies peddled the Russia collusion hoax for years. Or how about Coca-Cola’s woke CEO, Jim Quincey, denouncing Georgia’s new election law, even though he’s not an American citizen? You know what that sounds like to me? Foreign election interference.
These actions can chill and suppress free speech as much as—maybe more than—any law could. But the threat from “woke capitalists” extends further into basic economic freedom. Big Tech conspired to shut down Parler, an upstart competitor. GoDaddy deplatformed a pro-life group. Democratic congressmen wrote to major cable and streaming companies urging them to stop carrying Fox News. Major Wall Street banks and investment firms are wasting your retirement savings on green-energy boondoggles while divesting from oil companies and gun manufacturers.
Now, I know that some of our libertarian friends might say, “well, they’re private companies, they have a right to conduct their businesses as they see fit.”
But what will we say when entire disfavored industries are de-banked? What will we say when millions of Americans are deplatformed? When banks and credit-card companies and airlines ask for your voter registration? Is that liberty? Let’s not be the doctrinaire capitalists who will sell the proverbial rope that will be used to hang us.
These are challenging times. You can be fired for using the wrong pronouns. You can get kicked out of school for expressing mainstream political opinions. You can apparently be subjected to struggle sessions at Yale for joining the Federalist Society. For heaven’s sake, these days you can’t even cheer for some poor guy named Brandon.
It seems that this tiny but influential woke elite has all the power. To borrow from their fellow communists, they control the commanding heights. And they do control a lot: the media, Big Tech, Hollywood, universities, government bureaucracies, and increasingly Wall Street and Big Business.
But those of us who love our country, revere her founding, and honor her greatness have an even stronger redoubt: the people. And thankfully, the American people are sensible, decent, and grounded. Ours is a people who stand for the anthem and pledge allegiance to the flag, who read our Declaration on the Fourth of July, who want schools named for our founders, who celebrate the Pilgrims, who respect the police, and who still believe the content of one’s character is more important than the color of one’s skin.
The progressive left can mock these sensibilities, and they often get away with it. But sooner or later, the people have a chance to speak. And if you ever doubt their power, ask the president of the New Jersey Senate, the most powerful state legislator in America, who lost last week to a truck driver who spent a grand total of $153 on his campaign. A party that condescends to truck drivers will soon lose to truck drivers.
Lincoln said that in our system of government, “public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed.” Before laws are passed or cases are argued, public opinion is formed. And, as he put it, “consequently, he who molds public sentiment, goes deeper than he who enacts statutes or pronounces decisions.” For four decades, the Federalist Society has gone deeper, helping to restore the principles of our Declaration and Constitution to their rightful place in our politics.
The hour is late, but I would be remiss if I did not observe that we gather on this day dedicated to our brave veterans, who served and sacrificed in defense of those principles. And today is a particularly notable Veterans Day. Today marks the centennial of the Tomb of the Unknown Soldier at Arlington National Cemetery. One hundred years ago today, an unknown American soldier was interred on that sacred ground.
Republican Congressman Hamilton Fish, himself a veteran of the Great War, authored the bill creating the memorial to “an American soldier known but to God.” He explained that the Unknown “represents no section, creed, or race,” but rather “typifies … the soul of America.”
This is as it should be. The Unknowns stand in for all those who served and sacrificed the last full measure of devotion for our great nation. We do not know their race or their hometowns, but we do know the cause for which they gave not only their lives, but their very identities.
That cause is noble and true, it is our cause, it is the Federalist Society’s cause. And it remains today, as it was for them, a cause worth fighting for.
I’m proud to stand with you in the fight for America. May God bless you and may God bless the United States of America.
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