Supreme Court

Why Merrick Garland Should NOT Be on the Supreme Court

Libertarian legal eagle Randy Barnett explains why Garland's deference to Congress is a deal breaker.


HD Download

Georgetown Law's Randy Barnett says his former Harvard Law classmate, Merrick Garland, is "qualified" for the Supreme Court.

But that doesn't mean the Senate should confirm him.

Basic qualifications for a seat on the Supreme Court are "necessary but not sufficient," says Barnett, whose new book, Our Republican Constitution, lays out his case for "judicial engagement," in which judges actively challenge and invalidate laws and policies that infringe on individual rights and freedom. Our Republican Constitution is a powerful rebuke to long-dominant democratic majoritarianism, which holds that legislators have broad powers to effectively do whatever they want. Judges, in this reading of law, should defer to the wishes of lawmakers and government agencies.

Since the confirmation of recently deceased Antonin Scalia, Senate hearings have rightly focused not just a nominee's "qualifications," explains Barnett, but on his or her "judicial philosophy." And on that score, he says, Garland would be terrible for people who care about limiting and restraining government. "He is a deference guy, par excellence. He defers to the EPA, he defers to administrative agencies, that guy defers like crazy," says Barnett. "And for that reason, I do not think he would be a good justice for us to have."

For Reason's full, hour-long interview with Barnett, go here.

About 3 minutes. 

Camera by Todd Krainin and Joshua Swain; edited by Swain.

Scroll below for downloadable versions, and subscribe to's YouTube channel to receive immediate updates when new material goes live.