Scalia Spotlights

JAG Officer Recalls Her Experience Studying Under Supreme Court Justice Gorsuch

Philip Kiko
“What I Learned from Justice Gorsuch about Separation of Powers”

By Rachel Petrik (JD ‘19)

The quintessential black robe of a judge—each thread weaving centuries of crafted legal precedent together to create a garment symbolic of Article III’s judicial branch. I, however, am destined to advocate before judges and alongside lawyers of a different kind—military servicemembers donning olive camouflage and tawny combat boots. While I thought I recognized my unique place within the interplay among the three governmental branches as a law student who is committed to serve as an officer in the U.S. Navy’s Judge Advocate General’s Corps (JAG), I didn’t fully realize its import and accompanying responsibility until I studied under U.S. Supreme Court Justice Neil M. Gorsuch.

I was fortunate to be one of 24 students attending Justice Gorsuch’s separation of powers course as part of a once-in-a-lifetime study abroad program in Italy. For two-and-a-half weeks, we clambered into the wooden rows of a classroom at the University of Padua to pit each branch of government against the others and analyze the parchment barriers between them. Justice Gorsuch used the Socratic method to test our reasoning from the first question he asked of the class to the last—bringing the lesson full circle and leaving us yearning for more. Illustratively, the class outlined three potential characteristics to distinguish judges from legislators: judgment versus will; retroactivity versus prospectivity; and particularity versus generality. By the end of the day’s lesson, however, we had deliberately blurred the lines between all three distinctions and were left searching for differences between law interpretation and lawmaking in our common law system.

Eventually, breaking down the divides between the branches revealed the fundamental purpose of our governmental structure. Separation of powers is not a stable end in and of itself; rather, it is a dynamic means to safeguarding liberty. Through the branches’ independence, we enhance accountability. Through coordination, we gain efficiency. Through overlap, we protect against tyrannical usurpation. But understanding these contours is only the beginning for me—I realized in Italy that I was going to have to act in accordance with these lessons every day as a future military lawyer. In terms of mission accomplishment, when I advise commanders on the legality of their actions, I have to account for the due deference to the Executive’s role as Commander in Chief while also balancing Congress’s authority to make rules regarding captures on land and at sea. In terms of unit readiness, I will be called upon to help units respond with dispatch, but also to respect the voice of the people when the Legislature exercises its authority to statutorily regulate our troops.

At the close of the final class, Justice Gorsuch reminded us that someday the Constitution will be in our hands, and that it is ours to preserve and protect. Despite the Italian heat, chills coursed through my body as the gravitas of his words hung in the air. This heft of his admonition also transcended the walls of our Padua classroom. Just three days after my plane screeched across the tarmac in Washington, D.C., I took my oath of office for the Navy JAG Corps. With my right hand poised in the air, I swore to support and defend the Constitution against all enemies, foreign and domestic. Under the shadow of the stars and stripes, I vowed to bear true faith and allegiance to its principles. I am now more confident in my ability to fulfill this oath because of what I learned thousands of miles away in a little Italian haven called Padua.

Rachel Petrik is a 2019 graduate of George Mason University’s Scalia Law School and a JAG officer in the United States Navy. To learn more about the NSI Summer Program please visit National Security Institute.