[Senate Hearing 114-888]
[From the U.S. Government Publishing Office]
S. Hrg. 114-888
WITH PREJUDICE: SUPREME COURT
ACTIVISM AND POSSIBLE SOLUTIONS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON OVERSIGHT,
AGENCY ACTION, FEDERAL RIGHTS
AND FEDERAL COURTS
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JULY 22, 2015
__________
Serial No. J-114-25
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
U.S. GOVERNMENT PUBLISHING OFFICE
53-396 WASHINGTON : 2025
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont, Ranking
JEFF SESSIONS, Alabama Member
LINDSEY O. GRAHAM, South Carolina DIANNE FEINSTEIN, California
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana AL FRANKEN, Minnesota
DAVID PERDUE, Georgia CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
Kolan L. Davis, Chief Counsel and Staff Director
Kristine Lucius, Democratic Chief Counsel and Staff Director
.........................................................
SUBCOMMITTEE ON OVERSIGHT, AGENCY ACTION,
FEDERAL RIGHTS AND FEDERAL COURTS
TED CRUZ, Texas, Chairman
CHARLES E. GRASSLEY, Iowa CHRISTOPHER A. COONS, Delaware,
ORRIN G. HATCH, Utah Ranking Member
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
JEFF FLAKE, Arizona RICHARD J. DURBIN, Illinois
LINDSEY O. GRAHAM, South Carolina CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah SHELDON WHITEHOUSE, Rhode Island
DAVID VITTER, Louisiana AMY KLOBUCHAR, Minnesota
RICHARD BLUMENTHAL, Connecticut
Thomas L. Jipping, Republican Chief Counsel
Theodore Schroeder, Democratic Chief Counsel
C O N T E N T S
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OPENING STATEMENTS
Page
Cruz, Hon. Ted................................................... 1
Coons, Hon. Christopher.......................................... 4
Leahy, Hon. Patrick
Prepared statement........................................... 75
Hatch, Hon. Orrin G.
Prepared statement........................................... 73
WITNESSES
Eastman, John C.................................................. 7
Prepared statement........................................... 32
Responses to written questions............................... 77
Siegel, Neil S................................................... 9
Prepared statement........................................... 48
Responses to written questions............................... 80
Whelan, Ed....................................................... 10
Prepared statement........................................... 58
Responses to written questions............................... 82
APPENDIX
Items submitted for the record................................... 31
WITH PREJUDICE: SUPREME COURT
ACTIVISM AND POSSIBLE SOLUTIONS
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WEDNESDAY, JULY 22, 2015
United States Senate,
Subcommittee on Oversight, Agency Action,
Federal Rights and Federal Courts,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:53 p.m., in
Room 226, Dirksen Senate Office Building, Hon. Ted Cruz,
Chairman of the Subcommittee, presiding.
Present: Senators Cruz [presiding], Sessions, Coons, and
Whitehouse.
OPENING STATEMENT OF HON. TED CRUZ,
A U.S. SENATOR FROM THE STATE OF TEXAS
Chairman Cruz. This hearing is called to order. Welcome. I
apologize that we were delayed somewhat in getting started, but
I thank each of the three distinguished witnesses for joining
us. I thank my colleague, the Ranking Member, for being here.
It is with deep disappointment that I convene this hearing.
I have long admired and even revered the U.S. Supreme Court. I
began my career as a law clerk for Chief Justice William
Rehnquist. I clerked alongside one of our witnesses, Professor
Eastman, and I spent over a decade litigating before the U.S.
Supreme Court, both as the Solicitor General of Texas
representing the State of Texas and as a lawyer in private
practice representing a variety of clients.
Much to my great disappointment, this past term the Court
crossed a line, continued its long descent into lawlessness to
a level that I believe demands action. The Court today is not a
body of jurists. It is not a body of judges following the law,
but rather it has declared itself in effect a super
legislature.
Justice Scalia powerfully wrote in descent that the
decisions of the Court this term are a fundamental threat to
our democracy, that 5 unelected lawyers have declared
themselves the rulers of 320 million Americans. We have seen
the Court's imperial tendencies, previously. In the infamous
case of Dred Scott, the case that helped precipitate the Civil
War, the Court struck down a Federal law that banned slavery in
the territories. Why? Because the Court declared that liberty
includes the right to own slaves. A horrific, contorted
position with no support whatsoever in the actual text of the
United States Constitution.
In Lochner v. New York, an activist Court struck down
minimum wage laws, an action that, from a policy perspective,
may well have been good policy, and yet it was once again a
right found nowhere in the text of the United States
Constitution.
In more recent cases, most notably Roe v. Wade, the Court
created another new right, the right to abortion, that has
resulted in tens of millions of unborn children losing their
lives.
To anyone actually interpreting constitutional text, none
of these rights have any basis in the language of the
Constitution that governs this Nation. Indeed, the right to an
abortion that these unelected lawyers invented in 1973 found
its basis in, and I quote, ``penumbras formed by emanations
from other rights enumerated in the Constitution.'' That's a
phrase only lawyers could love. Penumbras formed by emanations.
Years later in reaffirming the right to abortion, a case
called Planned Parenthood v. Casey, Justice Kennedy proclaimed
that, quote, ``at the heart of liberty is the right to define
one's own concept of existence, of meaning, of the universe and
of the mystery of human life.'' Unfortunately, in Justice
Kennedy's ill fated attempt to define that sweet mystery of
life, the Court determined that that trumps the efforts of
elected legislatures to protect actual human lives.
Justice Kennedy's pop psychology has no basis in the text
or history of the Constitution, and yet sadly, it has become
the foundation for far too many of the Court's opinions. I
should note we are now witnessing the shameful results of the
Court forcing its own unlimited right of abortion onto the
Constitution.
Two undercover videos of Planned Parenthood show senior
Planned Parenthood officials callously, heartlessly bargaining,
haggling over price, selling body parts of unborn children.
Sipping on wine, indeed one of those senior officials described
she hoped to sell enough body parts of unborn children to buy
herself a Lamborghini.
I will say this even to supporters of abortion rights. I
would encourage every American to watch those videos and simply
ask the question,``Are those my values?'' It appears that both
of those senior Planned Parenthood officials have confessed in
video to multiple felonies. That will be a subject for another
day and another hearing.
Those consequences are the direct consequences of Justice
Kennedy's sweet mystery of human life and each of these
unelected lawyers should recognize the fruits of their
legislating from the bench is we now have haggling and
bartering selling the body parts, the tiny body parts of unborn
children.
Just a few terms ago, the Supreme Court began rewriting the
text of Obamacare. It took the word penalty, brought out an
eraser, erased that word and decided the word instead should be
tax. It was a decision where the Justices were not acting as
umpires calling balls and strikes, but rather they were putting
on a partisan uniform, joining the team of the Obama
administration and rewriting Obamacare.
In this term in King v. Burwell, those same unelected
judges put on those same Obama jerseys and rewrote the statute,
deciding that the phrase ``established by a State'' means
established by the Federal Government.
Make no mistake, this was not law. This was not judging.
This was legislating, this was rewriting a statute to meet a
policy outcome that five unelected lawyers supported. The very
next day five unelected lawyers declared that the marriage laws
of all 50 States were now somehow transformed into being
unconstitutional, that now somewhere in the Constitution is a
right to same-sex marriage.
The question of same-sex marriage is a question on which
reasonable minds can differ. I am a strong supporter of
traditional marriage, of the union of one man and one woman.
From the beginning of this country the question of marriage has
been a question for the States.
From the very first Congress through until a month ago, it
was undisputed that State legislatures have the authority to
define marriage and define it as they always had as the union
of one man and one woman. The premise of the Court's decision
is the rather ridiculous notion that the American people, when
they ratified the 14th Amendment in 1868, were somehow silently
and unbeknownst to themselves striking down the marriage laws
of every State in the union and decreeing same-sex marriage.
That's not law, that's not judging. That's policymaking. I
would note although many commentators, many in the media like
to talk about how they assert the American people agree with
this decision, no Court decision would have been necessary if
that were the case.
There is a reason why 40 States have passed laws and
constitutional amendments protecting traditional marriage,
because when the people have the opportunity to vote at the
ballot box, overwhelmingly the people have voted in support of
traditional marriage, even in bright blue California. When the
citizens of California voted on marriage, they voted to
preserve traditional marriage. The reason we needed a lawsuit
is precisely because the American people, when given the chance
to vote, have not voted for this and so 5 unelected judges said
to 320 million people, your views on marriage do not matter. We
will decree our views instead.
If any of us believes in democracy, if any of us believes
in the Constitution and rule of law, then whether we agree or
disagree with the policy outcomes in these particular
decisions, we should be horrified at the notion that 5
unelected judges can seize for themselves the policymaking
authority and take it from the American people.
We did not establish philosopher kings in this country. We
did not establish a rule by unelected elites to seize decision-
making authority from the American people. Indeed, that is the
very definition of tyranny, hence this hearing to discuss what
options the American people have to reign in judicial tyranny.
The Framers of our Constitution were well aware of this
threat. They wrote about it considerably in the ``Federalist
Papers'' and elsewhere, and there appears to be growing public
support for imposing real limits on the Supreme Court that is
disregarding the views of the American people.
In a recent Fox news poll, 72 percent of registered voters
agreed that Supreme Court Justices should only serve for a
limited time, and 62 percent think that Americans should be
able to vote Justices off the Supreme Court in light of the
lawlessness and judicial tyranny.
I support all of the above. I support every effort to bring
power back to ``we the people'' to restore democracy and
restore the Constitution. I am open to reasonable proposals on
judicial term limits, and I have publicly called for a
constitutional amendment subjecting Supreme Court Justices to
judicial retention elections. Twenty States follow this
practice, and it has had some meaningful success, reigning in
the abuse of judicial power.
So long as Justices on the Court insist on behaving like
politicians, acting like a political body and making policy
decisions rather than following the law, they should not expect
to be exempt from the authority of the voters who disagree with
their policy decisions.
I call for these reforms reluctantly and sadly as someone
who has spent much of his life in and around the Court. It is
the only reasoned response I believe to Justices that have
disregarded their oaths of office and have declared that their
policy views are somehow more important, somehow more
enlightened, somehow more valuable than your views or my views
or the views of any other American citizen who has a right to
go to the ballot box and resolve the issues by the people.
I now recognize my colleague, the Ranking Member, Senator
Coons.
OPENING STATEMENT OF HON. CHRISTOPHER COONS,
A U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Coons. Thank you, Mr. Chairman. I very much look
forward to the testimony of our three witnesses for whom we
have waited, so I will attempt to be brief if I can.
I welcome the opportunity to discuss the Supreme Court and
some of the cases it has decided in this term and the past. The
Supreme Court has from time to time endured criticism that its
work has become politicized and that the decisions of the
Justices mirror their presumed political preferences rather
than a consistent and transparent judicial philosophy.
I myself have been critical of the Supreme Court in a few
decisions with which I have disagreed. For example, the
Citizens United case overturned precedent upholding the McCain-
Feingold campaign finance law just a few years earlier. The
Shelby County case invalidated key provisions of the 1965
Voting Rights Act which had been upheld by previous Supreme
Court decisions and had just been reauthorized by Congress
unanimously, in fact, by the Senate 7 years prior.
Indeed, leading scholars have said that this Supreme Court
after the transition from Justice O'Connor to Justice Alito,
the Roberts Court is the most conservative by some estimates in
history.
According to a 2009 article by 7th Circuit Judge Richard
Posner and William Landes, Justice Kennedy, who is the very
center of this Court, would rank by their accounting as the
tenth most conservative Justice since 1937. Time and time
again, whether in Second Amendment cases, consumer protection
cases when considering affirmative action, reproductive rights,
voting rights, campaign finance laws, this current Supreme
Court has reached conclusions advocated by the political right,
not by my party or those typically on my side of the aisle.
It is therefore surprising many of my colleagues on the
Republican side have reacted so strongly to two cases in which
their advocates were unsuccessful. In the first case, King v.
Burwell, Republicans were seeking to strip away tax credits
that make health insurance affordable today for 7 million
Americans.
Opponents of the Affordable Care Act have lost repeatedly,
first at the ballot box and then twice at the Supreme Court,
most recently by a 6 to 3 super majority, including the Chief
Justice and Justice Kennedy, who are hardly routinely referred
to as liberals.
The charge that this Court is engaging in liberal activism
with the ACA is I think demonstrably false. The reading adopted
by the Court is fully consistent with the expressed will of
Congress.
Although Justice Scalia did not join in the opinion, the
Chief Justice's textual analysis was very much influenced by
Justice Scalia. Excuse me, although Justice Scalia didn't join
in the opinion, Chief Justice Roberts' textual analysis seemed
to be notably influence by Justice Scalia's jurisprudence.
He quoted him to say that the fundamental canon of
statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall
statutory scheme is essential--an essential underpinning of the
majority opinion.
To put it another way, Justices must interpret a law's
language within the context of what that law is trying to
accomplish.
Turning to the Court's historic decision, affirming
marriage equality in Obergefell, the Republican assault on
marriage equality is out of step in my view with the country
and our values. Gay and lesbian Americans, long shunned or
subjected to degrading treatment, inequality and criminal
penalties, have over recent years become valued full members of
American society, yet pockets of animists do remain.
What the Court decided in Obergefell was that marriage is a
fundamental right and that same-sex couples, though a
politically disadvantage minority, have equal claim to it as do
their straight fellow citizens. In so doing, I think the Court
was upholding constitutional rights against unjustified
deprivation which is what courts and especially the Supreme
Court does best. The right cheer the Supreme Court when it did
so for gun rights or for campaign spending limits or even the
religious right of a nonprofit corporation.
In time, I believe that bans on same-sex marriage will seem
as backward looking or out of step as bans on interracial
marriage are seen today. I would invite my colleagues to come
and join the celebration of marriage equality and the steady
movement toward civil rights that it represents.
I just want to conclude by making a comment about the
various reform proposals that have been introduced in
anticipation of or in response to the Supreme Court's decisions
this term.
We cannot decry judicial activism and create a
constitutional crisis every time that a big case comes out
against us. We are blessed in this country, in my view, with
the finest judiciary in the world, and for more than 200 years,
the Supreme Court has mediated disputes involving estates, the
political branches of the Government, private citizens, and I
have disagreed with a number of its decisions.
The Supreme Court has been a vital arbiter of political
interests precisely because it is insulated from the vagaries
of politics and political interest. We should therefore, I
think, reflect long and hard and exercise some humility on our
own before upsetting that essential balance. Thank you, Mr.
Chair.
Chairman Cruz. Thank you, Senator Coons. We will now begin
receiving witness testimony. Our first witness is Dr. John
Eastman. He is a professor and the former dean at the Dale E.
Fowler School of Law at Chapman University. He also serves as
the director of the Center for Constitutional Jurisprudence at
the law school.
Dr. Eastman is a graduate of the University of Dallas, he
received his Ph.D. in government from the Claremont Graduate
School and he received his law degree from the University of
Chicago School of Law. He clerked with me for Hon. Michael
Luttig on the Fourth Circuit and then for Hon. Clarence Thomas
on the U.S. Supreme Court.
Our second witness is Professor Neil Siegel. He is the
David W. Ichel Professor of Law at Duke Law School, where he is
the co-director of the Program in Public Law. Professor Siegel
graduated from Duke University, he has a Masters in Economics
from Duke University, a Ph.D. in jurisprudence and social
policy from the University of California Berkeley and he earned
his law degree from the Boalt Hall School of Law at the
University of California Berkeley.
It does not say this, but I have no doubt Professor Siegel
is celebrating a basketball championship this year.
Professor Siegel. I emphatically agree.
Chairman Cruz. Professor Siegel clerked for Hon. J. Harvie
Wilkinson on the Fourth Circuit and Hon. Ruth Bader Ginsburg on
the U.S. Supreme Court.
Ed Whelan is the president of the Ethics and Public Policy
Center. As a regular contributor to National Review Online's
Bench Memos blog, he has been a leading commentator on
nominations to the Supreme Court and the lower court and on
issues of constitutional law.
Mr. Whelan has previously served as the Principal Deputy
Assistant Attorney General for the Office of Legal Counsel. He
graduated from Harvard College and he received his law degree
from the Harvard Law School.
Mr. Whelan clerked for Hon. J. Clifford Wallace on the
Ninth Circuit and Hon. Antonin Scalia on the U.S. Supreme
Court. Professor Eastman.
STATEMENT OF JOHN C. EASTMAN, FORMER
DEAN, PROFESSOR, AND DIRECTOR OF THE
CENTER FOR CONSTITUTIONAL JURISPRUDENCE,
DALE E. FOWLER SCHOOL OF LAW, CHAPMAN
UNIVERSITY, ORANGE, CA
Professor Eastman. Thank you, Chairman Cruz, Ranking Member
Coons, and the other Members of the Committee both for inviting
me and also for holding this very important hearing.
I have to begin by agreeing with Senator Coons that we
ought to take very seriously any proposed change to the
structure of our Constitution and we ought not to do it for
light and transient reasons. A mere simple disagreement with
the outcomes of Supreme Court decisions in my view would not
suffice for the kind of things we are talking about.
I believe that there is something much more significant
going on here than mere disagreement with particular outcomes
in particular cases. I think we are seeing a pattern of
judicial refusal to follow the law of the Constitution in
instead substituting their judgment for others. For that of the
people, for that of the Congress, for that of the State
legislatures.
You know, Alexander Hamilton, in the very last of the
``Federalist Papers,'' reminded us that there may well be times
when their structure that they put together, which was
otherwise brilliant in its geometry, that there may be what he,
quote, ``feelings of inconveniences'' that must allow us to
correct the mistakes which they may have inevitably fallen into
in their first trials and experiments.
One of those mistakes, I believe, is their mistaken
expectation that the judiciary would be the weakest branch. It
has instead become not only the strongest, but, in my view, the
most dangerous because it is unchecked in its authority. The
checks that the Founders envisioned, the ability of the
executive not to give effect to an erroneous decision of the
Court, an egregiously erroneous decision of the Court or more
importantly, the power of this body combined with the House of
Representatives to impeach and remove from office a judge who
does not honor their oath of office.
Those checks that the Founders built in the Constitution
have proved, in time, to be ineffective, and that means we are
left with a judiciary that is unchecked. I think if you asked
any of the Founders that drafted the Constitution, they would
recognize that any body of men and women unchecked in their
power would have a tendency to grandize that power to
themselves and abuse it, and I believe that that is the
situation we are faced with today.
The Founders wanted the judiciary to be independent, both
to protect individual rights against the tyrannical majority
and also to ensure that the political branches stayed within
the confines of their delegated power in the Constitution.
They did not believe that the judiciary should be unchecked
in all its effects. The precautions, Alexander Hamilton wrote
in ``Federalist 78,'' for judge's responsibility are comprised
in the Article respecting impeachment. It could not be any more
clearer than that, that the impeachment power was not designed
simply to remove judges who committed egregious criminal
conduct on the bench, but rather judges that failed to take
seriously their oath of office of public servants applying the
Constitution rather than their own will in the exercise of
their delegated powers under the Constitution.
It has not worked, partly because Thomas Jefferson
overplayed his hand in a political impeachment of Associate
Justice Chase way back in 1804. The pendulum though swung too
far the other direction, and it has stayed there ever since,
where we think that the impeachment check on the judiciary they
envisioned is not appropriate at all in responding to a
judicial aggressiveness.
A second thing that has crept into our politics that they
would not have envisioned is a misunderstanding of the Supreme
Court's decision in Marbury v. Madison, which established
judicial review, but we have now taken it as establishing
judicial supremacy that when the Judges speak, that now becomes
the supreme law of the land rather than the Constitution that
they are supposed to be interpreting.
That understanding of Marbury is actually contrary to what
John Marshall actually says in that case, and he confronts this
issue head on. He says the notion that the Supreme Court can
void an Article of Congress, an act of Congress, does not imply
the superiority of the Court to the legislature. It rather
implies a superiority of the Constitution and the people to
both of those branches of Government. We have lost that
understanding of the primacy of the Constitution.
The third thing that I think has changed our understanding
here is the dramatic change, transfer of power from the States
to the Federal Government following the Civil War Amendment
after the Civil War.
Salutary in its effect, it also had the unforeseen
consequence of transferring a tremendous amount of unchecked
power over the States to the judiciary. I propose in addition
to what Senator Cruz has offered as judicial retention
elections, which is a way to restore some check on the
judiciary to the people directly, that the States ought to have
a role in checking the judiciary as well.
That transfer of power from the 14th Amendment and others
of the Civil War Amendments have left the judiciary unchecked
with respect to questions of federalism. In fact, quite the
opposite. The collaboration of the political branches in
Washington and the Court has left the States completely out of
the process in many instances.
I propose that you look at, as a Committee, giving the
States the ability by a majority of the States to override an
egregiously wrong threatened the federalism decision of the
Supreme Court.
Finally, as we have seen that because the impeachment power
itself has proved ineffective, it is a blunt instrument that
perhaps we ought to be considering a two-thirds vote of both
bodies of the Congress to override an egregiously erroneous
decision of the Supreme Court. That would correct a particular
bad decision without having to go through the final step of
removing those particular Judges from office altogether.
I thank you again for inviting me to this hearing. I look
forward to your questions.
[The prepared statement of John C. Eastman appears as a
submission for the record.]
Chairman Cruz. Thank you, Professor Eastman. Professor
Siegel.
STATEMENT OF NEIL S. SIEGEL,
DAVID W. ICHEL, PROFESSOR OF LAW
AND PROFESSOR OF POLITICAL SCIENCE,
CO-DIRECTOR OF THE PROGRAM IN PUBLIC
LAW, DUKE UNIVERSITY SCHOOL OF LAW, DURHAM, NC
Professor Siegel. Chairman Cruz, Ranking Member Coons and
Members of the Subcommittee, thank you for inviting me to
testify today. I am honored to be here, and I thank the
Chairman for mentioning the national championship of Duke's
men's basketball team.
It is appropriate, indeed vital for Americans in and out of
government to discuss, criticize and consider proportionate
responses to decisions of the Supreme Court with which they
disagree.
The Justices and the rest of us often disagree about
questions of legal interpretation. We always have. I vigorously
disagree with several important decisions of the Roberts Court.
Citizens United and Shelby County come immediately to mind.
In the wake of those decisions, it never crossed my mind to
attack judicial independence by advocating a fundamental
restructuring of the constitutional relationship between
Congress and the Court. It never crossed my mind to advocate
jurisdiction stripping, which is fraught with constitutional
difficulties and likely to prove short sighted.
It never crossed my mind to call for retention elections
for the Justices. On the constitutional Richter scale,
retention elections are of a similar magnitude to President
Franklin Delano Roosevelt's infamous failed court-packing plan
and may be even more harmful to judicial independence.
Retention elections pose a continuous threat to unpack a
Court if it renders unpopular decisions, including decisions
that protect the rights of unpopular minorities whether secular
or religious.
Given what is at stake in rewriting or potentially
violating Article 3 of our Constitution, it is puzzling that
any of the Court's recent decisions would elicit a call to
severely compromise judicial independence. The targets are King
against Burwell and Obergefell against Hodges, but those
rulings make the timing more curious because they were decided
not only reasonably, but correctly.
In King, a super majority of Justices sensibly read the
Affordable Care Act to allow taxpayers to obtain tax credits
which make health insurance affordable to them regardless of
whether they buy the insurance on a State health insurance
exchange or on a Federal exchange.
The opinion of Chief Justice Roberts for a six Justice
majority is carefully constructed, respectful, evenhanded and
persuasively reasoned. What is more, the decision returns the
issue of the size of Government in the field of healthcare to
the political arena where it belongs.
While the Court's decision in Obergefell limited the
democratic process at the State level, the Court was justified
in doing so in light of the constitutional rights at issue.
By the time of the decision, it had become evident that
State bans on same-sex marriage violate the 14th Amendment in
several ways. For example, the Court held in Obergefell that
such bans burdened the fundamental right to marry which
triggers strict scrutiny under both the due process and equal
protection clauses.
The Court has long understood the right to marry as more
encompassing than what the institution of marriage
historically, traditionally, and in some respects
unfortunately, look like in America.
If the Court had limited the right to only those marriages
that are deeply rooted in American history and tradition, then
it would not have been able to hold in Loving against Virginia,
that bans on interracial marriagex, which go back to the days
of slavery, violate the fundamental right to marry.
Writing for the Court, in Obergefell, Justice Kennedy
emphasized that all of the reasons why opposite sex marriage is
constitutional protected apply to same-sex marriage.
By burdening the right to marry, State bans on same-sex
marriage trigger the presumption of unconstitutionality. States
that ban same-sex marriage could have overcome this presumption
only if they had been able to demonstrate that excluding gay
people from marriage is substantially related to an actual and
important State interest.
This means an interest that is other than something made up
for purposes of litigation and an interest that is other than
an expression of morale opposition to homosexuality.
In years of litigation culminating in the Supreme Court,
able lawyers for the States that ban same-sex marriage proved
unable to make this showing. I recognize that the issue of
same-sex marriage is difficult for some Americans, but even
they should agree that the Court's decision in Obergefell
should not be met with threats to the independence of the
Supreme Court.
At the very least, the Court reached a reasonable decision
within the bounds of its accepted authority. My own view is
that the Court's decision vindicates basic constitutional
principles of equal citizenship and personal autonomy and in
doing so will help bring an end to the pain and humiliation
that gay Americans and their families have long endured.
With all respect, all due respect to the dissenting opinion
of Chief Justice Roberts in Obergefell, the Constitution had
everything to do with it and it now seems likely that the day
will come when the lawfulness and legitimacy of this decision
will not be subject to much professional or popular
disagreement but will instead be viewed as one of the finer
hours in the Court's history on the long road to equal
citizenship stature for all Americans. Thank you.
[The prepared statement of Neil S. Siegel appears as a
submission for the record.]
Chairman Cruz. Thank you, Professor. Mr. Whelan.
STATEMENT OF ED WHELAN, PRESIDENT,
ETHICS AND PUBLIC POLICY CENTER, WASHINGTON, DC
Mr. Whalen. Thank you.
Chairman Cruz. Could you turn your microphone on, please?
Mr. Whalen. Thank you very much, Senator Cruz. Thank you to
Senator Coons and the other Members of this Subcommittee for
inviting me to testify.
Just last month, five Justices embraced the claim that
there is a constitutional right to marry a person of the same-
sex. That is the same claim that a unanimous Supreme Court,
with three of the most aggressive liberal judicial activists
ever, dismissed as frivolous four decades ago.
To be sure, the public's position on issues related to
homosexuality has changed considerably over that period and it
is no surprise to see those changes reflected in revised laws
and policies. The 14th Amendment did not change. What happened
I would submit is simple. Same-sex marriage rose high on the
left's agenda, five Justices decide that it was a good idea,
and they figured they had ample political coverage to foist it
on the American people.
The constitutional question in Obergefell v. Hodges was not
whether it was a good idea to redefine marriage to include
same-sex couples. It was instead whether the Court would
foreclose the ability of the people in each State to decide
that important question of public policy.
In denying American citizens their rightful authority over
that question, the Court majority acted unconstitutionally and
displayed, in the Chief Justice's words, ``an extravagant
conception of judicial supremacy''.
Some of the ordinary tools are available and necessary to
respond to some of the damage that Obergefell threatens. In
particular, there is an urgent need to protect churches and
religious schools and charities from being severely penalized,
even driven out of operation, merely because they adhere to the
same understanding of marriage that President Obama professed
to hold when he ran for President.
It is essential that Congress and the States enact specific
religious liberty protections along the lines of the First
Amendment Defense Act that is now pending in both houses of
Congress.
More broadly, the Court's ruling in Obergefell shows, as
Justice Alito observes in dissent, that ``decades of attempts
to restrain [the] Court's abuse of its authority have failed''
and that there is a ``deep and perhaps irremediable corruption
of our legal culture's conception of constitutional
interpretation.''
Obergefell, is like Roe v. Wade, a particularly egregious
example of the broader problem of so-called ``living
constitutionalist'' decisions. The ``living Constitution''
euphemism is at bottom nothing more than an excuse for five
Justices to indulge and impose their own policy preferences in
the guise of discovering new constitutional rights.
As one scholar has put it, the living Constitution is
really a zombie Constitution, as the corpse of the real
Constitution has been reanimated with the left's favorite
positions.
To use Alexander Hamilton's terms from ``Federalist 78'',
these living-constitutionalist Justices are exercising will,
not judgment. In doing so, they are undermining the very ground
on which judicial review of the constitutionality of statutes
is justified.
The widely accepted myth of judicial supremacy compounds
the problem. According to this myth, the Constitution means
whatever five Supreme Court Justices claim it means and all
other governmental actors are duty bound to abide by that
supposed meaning.
This mistaken concept of judicial supremacy is often
confused with the sound and much lesser power of judicial
review. What Obergefell shows is there is no rewriting of the
Constitution that is too absurd to be beyond the bounds of the
possible if something matters to the left and there are five or
more living-constitutionalist Justices on the Court. Indeed,
Justices Ginsburg and Breyer illustrated the point in another
recent case in which, after more than 20 years each on the
Court, they suddenly called into question the constitutionality
of the death penalty.
The list of possible living-constitutionalist innovations
is endless: voting rights for illegal aliens, a right to
taxpayer funding of abortion or sex-change operations,
mandatory equalized spending for public school districts, a
right to a set level of welfare payments, a right to have
multiple spouses.
Other innovations might also severely impair existing
rights. For example, many on the left aim to remove First
Amendment protections for so-called hate speech, an amorphous
category that constantly expands to cover statements the left
does not like, such as criticism of racial preferences.
One avenue that is available for working to thwart the
Court's unconstitutional excesses is the election in 2016 of a
President who will aim to appoint sound Justices to the Court.
I know Chairman Cruz agrees with me on that point.
The Court's extraordinary abuses also call for
consideration of extraordinary responses. Possible responses
include a range of constitutional amendments. For example, to
amend the amendment process itself, to override specific
rulings, to provide a means besides impeachment for removing
bad Justices and to impose term limits on Supreme Court
Justices. I will note that various voices on the left have
advocated several of these approaches.
None of these possible solutions, of course, would be easy
to adopt and careful consideration of their advantages and
disadvantages is required.
The challenge is great. With the present state of affairs,
the difficulty of the challenge is a poor excuse for inaction.
Thank you.
[The prepared statement of Ed Whelan appears as a
submission for the record.]
Chairman Cruz. Thank you, Mr. Whelan, and I thank each of
the witnesses for your learned testimony.
Professor Eastman, I would ask you, briefly elaborate on
the idea you mentioned at the end of your testimony about
giving the States the ability to reign in judicial excess.
Professor Eastman. Chairman Cruz, I think my point is that
with the massive transfer of power from the State to the
Federal Government that came in the wake of the Civil War which
had some salutary benefits, we for the first time put in the
Constitution the protection of the Declaration of Independence
and alienable rights and applied it to the State as well as to
the Federal Government.
It unmoored the courts. The impeachment check that was
designed as a check that exists in the Congress, the States are
not part of any check on the Federal judiciary whatsoever, and
that transfer of power should not have come at an unlimited
delegation of authority to the courts.
Allowing the States to get back in that game when they
are--when their sovereignty is intruded upon by egregiously
erroneous decisions of the Supreme Court that threaten the very
nature of federalism, I think that the Constitution structure
ought to give them a check, and the one I proposed is a simple
majority of the States that would not be easy to accomplish on
any issue. It would mean that only truly egregious threats to
State sovereignty would rise to that level, but a simple
majority of the States ought to be able to override those kind
of decisions of the Supreme Court.
Chairman Cruz. Thank you. Professor Siegel, you said in
your testimony, quote, ``The whole point of having a Supreme
Court is to enable it to exercise independent judgment.'' I
have to confess I have a different view of the Supreme Court's
role. I think the Court's role is to apply the law and not
exercise independent judgment. I think that is the essence of
lawmaking.
I would like to ask you, imagine a hypothetical in which we
had a President, let us say President Jeff Sessions, and after
8 years in the White House, President Sessions had appointed a
number of strong conservatives to the Court, and let us say he
had made a mistake and he had put what I would consider to be
conservative judicial activists on the Court.
I want to ask you about a couple of decisions that a
conservative judicial activist might impose. Prior to Roe v.
Wade, abortion was a question that was left to the States.
Different States resolved the question of abortion differently.
One could imagine a future Supreme Court speaking in the
same language of Justice Kennedy of the sweet mystery of life
that declares that every unborn child has a right to life and
therefore in every State it shall be illegal for any abortion
to occur in any circumstance whatsoever. That is one possible
decision.
Another example, the Fifth Amendment provides that we shall
not be required to testify against ourselves. As a policy
matter, you can make some pretty strong arguments against that,
that there would be nothing wrong with putting an accused
criminal on the stand asking did you kill so and so, and if
they say no, throwing them in jail.
Imagine an activist Court that said we do not agree with
this and so from now on you have no more Fifth Amendment right
against self-incrimination.
A third example, there are many California environmental
laws that I think as a policy matter are patently silly and
hurt the citizens of California. Imagine a Supreme Court that
said we think they are patently silly and within the emanations
from penumbras, we declare they are now struck down.
The fourth example I will give you is school choice. I am a
passionate advocate for school choice. I think it is the Civil
Rights issue, the 21st Century. I also believe in democracy. I
think the place to win on school choice is in Congress and the
State legislatures convincing your fellow citizens.
Imagine the Sessions Court decreed that every child has a
right to school choice, to vouchers to attend any school. Now,
I would ask you, Professor Siegel, if a subsequent Court issued
those rulings, would you consider those rulings activist? Would
you consider them legitimate? And what should be the response
to those rulings?
Professor Siegel. Thank you. Thank you, Mr. Chairman. When
I used the term ``independent judgment'', what I mean is the
Court's independent judgment about what the Constitution
requires, not its independent judgment independent of the
Constitution.
I think my framing of the issue as opposed to yours
presupposes what has existed in this country from the very
beginning which is robust disagreement about what the
Constitution means. That is the question that Hamilton begs in
``Federalist 78.'' That is the question that Marshall begs in
Marbury against Madison when he borrowed from Hamilton's
``Federalist 78.''
We as a people have always disagreed about some basic
questions of Federal constitutional law, and so when I talk
about independent judgment, I mean independent judgment about
what the Constitution means, not what a majority of States will
do in response to a Supreme Court that would decide a case like
Brown, an intensely controversial case at the time.
I could add to your list of hypotheticals other decisions
that you might think are correctly decided and way outside the
bounds. But Citizens United, Shelby County, I could add to that
list.
Chairman Cruz. Let us stick with the hypothetical that I
gave you.
Professor Siegel. Right.
Chairman Cruz. Would you consider those decisions
activists? Would you consider them legitimate? What would the
responses be that you would advocate?
Professor Siegel. I would not use the term activist because
activist as it is used in current discourse means I very
strongly disagree with the decisions, and so I would say that I
very strongly disagree with the decisions.
I would not try and mask substance in process by talking
about activism. I would say that they are wrongly decided and I
would hope that future elections would correct the mistakes
through nomination and confirmation replacing the Justices on
the Court. If they came----
Chairman Cruz. With respect, at least, when I use the word
activist, I do not mean decisions with which I disagree. I mean
decisions that are unfaithful to the law and the Constitution.
I specifically gave you examples. Every one of those instances
may well be policies that as a legislator I might vote for and
might vote for enthusiastically.
Those are opinions I might agree, but I am happy to say
those opinions, there would be a very good argument that those
were activist even though they are my policy preferences, it is
not the role of a judge to enforce its policy preferences.
My time has expired, I want to ask one final question. Mr.
Whelan, can you share briefly to the Committee your
understanding of the experience the States have had with
judicial retention elections? Have they been effective reigning
in judicial excess? Likewise I want to briefly ask the panel
its views on judicial term limits.
A number of folks have advocated that, including Professor
Erwin Chemerinsky, a known liberal law professor and I would be
interested on the panel's views on that proposed check on the
Court.
Mr. Whelan. Happy to address this, Senator. I will say my
own impressions are anecdotal. It is not a matter that I study
carefully. As a native Californian, I am well aware of the
ejection of Rose Bird and two of her colleagues in 1986, I
believe.
I cannot say that that had any clear, long term impact in
improving the California Supreme Court, if you look at what it
is now. Perhaps it could be worse, but I find that difficult to
imagine.
I do want to say though, if I may, when Professor Siegel
refers to robust disagreement and methods of constitutional
interpretation or disagreement over what the Constitution
means, of course he is right that there has been a robust
disagreement, but that phrase obscures a central question of
just when is it that judges have authority to override a
democratic enactment?
What you see in Hamilton--``Federalist 78'' by Hamilton is
a statement that you need a clear conflict, I believe an
``irreconcilable variance'' between the Constitution and the
laws. If the Constitution has no determinate meaning, which of
course is the living-constitutionalist view, it can mean all
sorts of things. It can mean something different from one day
to the next.
What that ought to mean, taken seriously, is that living
constitutionalists have undercut the very basis for judicial
review.
On these other constitutional amendments, I think there is
a considerable agreement across the ideological spectrum that
the Constitution is too difficult to amend, that the Article V
process sets too high a standard. Some might say it sets too
difficult a standard for getting amendments proposed in the
first place, others would object to the three-quarters
threshold for approval, some would object to both.
I would think there ought to be real interest in looking at
that. I also note that the convention of the States, which is
basically a collection of applications to Congress to force
Congress to call for a constitutional convention to propose
amendments--not to ratify them, to propose amendments--is by
some counts just two or three States away from having enough to
compel Congress to act. That might be another avenue worth
pursuing.
Chairman Cruz. Any very, very quick reactions to the
judicial term limits?
Professor Eastman. I will address the term limits. I do not
think that solves the problem. The problem is judge's acting
beyond the scope of their authority. A series of judges who do
that for 18 years and then leave and pass the baton to another
judge who would do the same thing does not solve the problem.
There needs to be an institutional check on the judiciary that
remedies a violation of their oaths.
Professor Siegel. I am happy to consider amendments as a
matter of good governance, as a matter of constitutional
design. I think it is a mistake to consider amendments in
response to one or two decisions that you disagree with.
Term limits I have thought about for a long time and I have
become persuaded as a matter of constitutional design. I think
they are a good idea. It is hard to find a constitution around
the world or in the States that has the kind of life tenure
that we have on the Supreme Court.
People are appointed in their 40's, they can stay there
until their 90's. I think nomination and confirmation is a way
in which we, over time, ensure democratic accountability. That
to me is the most common, appropriate way and I think regular
changeover on the Court like an 18 year term might be a very
good idea and worth serious consideration.
Chairman Cruz. Thank you very much. Senator Coons.
Senator Coons. I would like to thank the panel for our
conversation. I would like to turn to a particular question
that was raised by your testimony if I might, Mr. Whelan.
Just help me understand legally what justifies a ban on
same-sex marriage other than tradition?
Mr. Whelan. Your very term, Senator, ``a ban on same-sex
marriage,'' begs the question what marriage is. Many of these
things that have been called bans on marriage are simply
definitions of marriage as a union of a man and a woman.
You know, I could explain the consequences of heterosexual
intercourse to you if you would like. I do not think we really
need that here, but you look at what the Chief Justice spells
out in his dissent. That is the conventional understanding that
was accepted across the ideological spectrum. Left wing
sociologists spelled out that marriage exists in order to
provide the best framework for raising the children that are
naturally generated by heterosexual intercourse.
I emphasize my position is not that the Constitution
entrenches my view on what marriage is. I believe that this,
like other matters, is a matter that has been left to the
democratic processes for revision, and I might well lose out in
those democratic processes.
The notion that the definition of marriage which Justices
Douglas and Brennan and Marshall saw as so clearly permissible
that they dismissed the appeal in Baker v. Nelson, the notion
of marriage that your Democratic colleagues, Patrick Leahy, Joe
Biden, a couple Members of this Committee adopted when they
voted for the Defense of Marriage Act, the notion that that
definition of marriage is unconstitutional is something that
anyone would have considered an absurdity until the last few
years.
Reasonable people are entitled to have their policy views.
Even unreasonable people are entitled to have their policy
views, absolutely. What is happening is the conflation of those
intensely held policy views with the Constitution and reading
into the Constitution things that it has never meant and cannot
possibly mean.
The point of my testimony is that if you take that
approach, there is nothing that is beyond the bounds of living
constitutionalism, absolutely nothing. Again, what that means
is that the very basis for judicial review, the very basis for
judges overriding democratic enactments is undercut if the
Constitution itself has no determinate meaning.
Senator Coons. Professor Siegel, any response to the
concept that we are now utterly without boundaries?
Professor Siegel. I think it is appropriate to recall the
wisdom of Judge Bork and he said that judges and lawyers live
on the slippery slope of analogies. They are not supposed to
skid to the bottom, and so you could say, ``Well, now we have
same-sex marriage, what about 5 people? What about 50? What
about 100? Why just stick with people? What about animals? Why
not just animals? What about vegetables? What about rocks?''
You can go on and on and I think the response would be actually
there are quite principle distinctions between those sorts of
marriages that would survive heightened scrutiny by the Court.
I believe Mr. Whelan put forth the procreation rationale
for limiting marriage to one man and one woman, and I think
Justice Scalia very effectively explained why that rationale
does not work in his descent in 2003 in Lawrence against Texas.
When you have so many opposite sex couples who are not capable
of procreating or do not want to procreate, it seems like
procreation is not an effective or satisfactory rationale, and
I would add that you have now many, many same-sex couples who
are procreating and are raising families, and marriage provides
the stability for their children that the children of opposite
sex marriages enjoy.
Senator Coons. Professor Siegel, if I might just follow up
on that point, I have been struck by some of the similarities
between Loving v. Virginia in 1967, and how it related to Brown
v. Board in the understanding of how the 14th Amendment's Equal
Protection Clause applies to racial minorities and then how the
rights of racial minorities or people of different racial
backgrounds to marry each other sort of later came from that
second decision.
Obergefell follows 12 years after Lawrence v. Texas which
you referenced in passing. Lawrence prohibited States from
criminalizing intimacy between consenting adults of the same-
sex.
What do you think are the connections between Brown and
Loving on the one hand and Lawrence and Obergefell on the
other?
Professor Siegel. I think you see how constitutional law
works, that it is dynamic and unfolds over time. The principles
in Brown I do not think were clear at the time of Brown, that
interracial marriage was also on the hook and it took more than
a decade for the Court to declare bans on interracial marriage
unconstitutional, not just under the Equal Protection Clause,
but under the Liberty Clause of the 14th Amendment.
I think you see a similar incremental path with respect to
same-sex marriage as you move from Loving to Windsor and then
from Windsor to Obergefell. I really think it is very difficult
to distinguish Loving in terms of its holding with respect to
the fundamental right to marry.
Interracial marriage was banned from the very beginning of
this country. It goes back to slavery and the Court said that
the fundamental right, the Liberty Clause of the Constitution
protects the right to interracial marriage and the conclusion
that the country eventually drew, that the country eventually
drew was not that everything is up for grabs, rather this
vindicates the principles of Brown and I think the same thing
is true with respect to Obergefell.
Senator Coons. One last question if I might, Professor.
Justice Kennedy did not explicitly adopt heightened scrutiny
for laws that discriminate based on LGBT status.
In your view, what level of scrutiny applies and given the
comment you just gave about the liberty interests, are we
poking about penumbras here, or are we implementing one of the
fundamental values of our country as reflected in our
Constitution?
Professor Siegel. Right. If we are talking about
discrimination based on sexual orientation, we are moving from
the Liberty Clause to the Equal Protection Clause. The Court
has yet to expressly declare what the level of scrutiny is when
it is used in a technical legal language that is the talk of
rational basis review, but I believe in my judgment and the
judgment of many scholars of the Court, the Court has in fact
been applying some form of heightened scrutiny.
In Loving--excuse me, Lawrence, in Windsor, I think you see
equality reasoning that seems inconsistent with genuine
deferential rational basis review. My own judgment is that
heightened scrutiny ought to apply to discrimination based on
sexual orientation for many of the same reasons that
discrimination based on race and sex triggers heightened
scrutiny, an immutable characteristic that is irrelevant to the
ability of a person to participate in American society in a
long, very unfortunate history of discrimination and exclusion.
Senator Coons. Thank you, Professor.
Chairman Cruz. Thank you. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman, and thank you
for having this hearing. I have always defended the courts. I
believe the strength of American democracy depends on the rule
of law.
I have practiced before Federal judges 15 years and I have
tremendous respect for them. Day after day they follow the law,
did their duty. When I see what is happening at the Supreme
Court level, it strikes me as a foreign unhistorical approach
to law. It is just breathtaking in some of the things that has
happened.
It recalls my freshman law school class when the professor,
I would say an activist advocate, drew nine little circles on
the board, drew a big circle around it and then circled five of
the little circles and said the Constitution is what they say
it is. That is all it is. That is an extremely cynical view.
That goes against the idea of American democracy and American
jurisprudence and I just reject it out of hand.
My good colleague, Senator Coons, is one of the best people
in this body, I have got to tell you. He says that the idea
that homosexuals could not get married is out of step with
American values.
Who is he to say? People voted on that in State after
State, legislatures have voted on it in State after State. Who
decides this is out of step with American values?
You know, Mr. Siegel, I believe you say you cannot have a
big case cry activism. That is true, and you cite cases. I
think Citizens United can very well be defended under the First
Amendment, I believe that Shelby County is very well decided,
but people could disagree with both of them. Good people could
disagree with both of them.
The Obamacare decision, I think it has some justifications.
I was disappointed in it, but lawyers have a lot of thought and
gave a lot of thought to it. The marriage case goes beyond what
I consider to be the realm of reality, and so the question
arises, Mr. Chairman, as you are raising, are we just now the
subordinate branch?
As Justice Scalia said, there are nine lawyers, five of
them get to decide policy questions for America now? The great
Congress has nothing to say about it? We are just stuck and
hope that we might win the next election? That will not be the
only issue in the next election.
Perhaps another activist promoting President will win on
any number of issues. You are in a point where you seem to me
you are losing control of the country. You are losing control
of the separation of powers in the right order.
I just feel strongly. Personally, I have tried not to be an
attacker of the Court even when I have disagreed to propose
remedies. I am beginning to wonder if that is justified now.
Mr. Whelan, you have got the withdrawal of jurisdictional,
the apparent ability of Congress to withdraw jurisdiction
without a constitutional amendment. Do you have any thoughts--
Mr. Eastman mentioned some. Do you have any thoughts
specifically that might be practical, achievable and would in
some sense at least send a message to the courts that you are
not omnipotent, you are just a co-equal branch?
Mr. Whelan. On the withdrawal of jurisdictions
specifically?
Senator Sessions. Yes. I would ask that first.
Mr. Whelan. That is a complicated area and again, as with
others of these, it is going to require careful consideration
to make sure you are not doing anything that has unforeseen,
unintended consequences. I will say that I think that the
power----
Senator Sessions. As a practical matter it would be hard to
draft I guess.
Mr. Whelan. It could well be and it could end up simply
inviting State court judicial activism, but, that said, I think
Congress has this authority. It is worth exploring and
experimenting with.
I do not think it is any grand answer, but it is possible,
for example, that in the aftermath of Obergefell, Congress
could rule that the Federal courts have no jurisdiction over
any further marriage challenges. This would be a challenge to
the myth of judicial supremacy, to the obligation in the eyes
of the Court for everyone to do whatever the Court says.
Of course, what happens then is that courts will probably
strike down these limits on their jurisdiction and you are
going to end up ultimately with a fight over what is Congress
going to do when push comes to shove?
We live in this culture of judicial supremacy and of living
constitutionalism. That needs to be combated. If we combat
those myths and defeat them----
Senator Sessions. You mean intellectually?
Mr. Whelan. Intellectually, culturally in the law schools
which are the breeders of most of this nonsense. If we do that,
much of the problem begins to solve itself. If you do not do
that, it is very difficult for any of these problems to get
solved.
Senator Sessions. Professor Von Holstein said once the 11th
Circuit, that if you respect the Constitution, you will enforce
it as written. Thank you, Mr. Chairman.
Chairman Cruz. Thank you, Senator Sessions. Senator
Whitehouse.
Senator Whitehouse. Thank you, Chairman. Professor Siegel,
it is interesting to me that we have had such a run of five-
person Supreme Court conservative decisions that appear to have
completely changed the legal landscape, and it is not until the
gay marriage decision comes that we start having hearings from
the other side about judicial activism.
Let me run through just a few of them. The Heller decision.
Before the Heller decision, had there ever been recognized an
individual right to bear arms under the Second Amendment?
Professor Siegel. Not by the U.S. Supreme Court.
Senator Whitehouse. No. Indeed had not Supreme Court
Justices disparaged the very notion that there was such a
thing? I believe they actually used the same word we used here,
frivolous.
Professor Siegel. Chief Justice Burger called it a fraud
perpetrated on the American people. I also believe Judge Bork
was, at least earlier in his career, skeptical about the
existence of such a right.
Senator Whitehouse. Then they took power in 5 to 4 and
changed that Citizens United, what was the history of
restrictions on corporate spending prior to Citizens United?
Professor Siegel. A long history of restrictions, and the
Citizens United Court was required to overrule two previous
decisions, McConnell and the Austin case, in order to change
the law.
Senator Whitehouse. In addition to ignore enormous factual
records that had been built up at various times including in
the earliest cases when the Senate took notice that the malign
influence of corporations and politics was so obvious you
didn't need to build--that on a bipartisan basis, you did not
even need to build a record on that. They just took that as a
given, correct?
Professor Siegel. I think the holding with respect to
corporations making unlimited expenditures from the general
treasury funds is an important part of the case, but I think a
much more important part of the case is how the Court
redesigned, refashioned the definition of corruption that
Congress can regulate.
It reduced regulable corruption to something akin to a
bribe. Quid pro quo corruption. The Court held that
ingratiation access is not corruption, and that is why you have
the flood of spending now not just by corporations, but by
very, very wealthy individuals.
Senator Whitehouse. Another constitutional novelty?
Professor Siegel. Yes. Yes, the baseline is preexisting
constitutional law.
Senator Whitehouse. The Shelby County decision that took
out one section of the Voting Rights Act, that was an act of
Congress that under the 15th Amendment to the Constitution was
actually specifically dedicated to Congress as the implementing
agency of Government, correct?
Professor Siegel. That is correct. Section 2 of the 15th
Amendment, like Section 5 of the 14th Amendment, they use the
language of Congress shall have the power by appropriate
legislation to enforce the provisions of this article.
The language appropriate is drawn from Chief Justice
Marshall's opinion self-consciously in McCulloch against
Maryland, that is supposed to signal deference.
Senator Whitehouse. The other point that I wanted to raise
with you has to do with juries. It is a little bit less of an
immediate and sudden reversal of constitutional and legal and
cultural precedent, but it strikes me that in a pattern of
decisions, Twombly, Iqbal, Conception, Rent-A-Center, and more,
the five conservative Justices of the Supreme Court are
gradually and systematically trying to erode the institution of
the civil jury, which, according, at least to Blackstone and to
Tocqueville and other knowledgeable observers of our history
and of the constitutional structure that we tried to develop
were actually an important part of our separation of power
structure.
People fought, bled, and died to have civil juries in the
Revolutionary War and there has been a long corporate campaign
to say that juries are runaway juries, to say that jury awards
are reckless and this American institution is almost vanishing.
The Chief Judge of the District Court in my home State said
that he had not done a civil jury trial in 3 years, and it
would seem to me that while it is not as abrupt as the gay
marriage decision, we have a Court that in every decision that
it makes whittles and chips away at the institution of the
jury, whether it is to make it harder to get in front of the
jury with heightening pleading standards, whether it is taking
class actions and making them harder to bring so that high
volume but low dollar frauds become something that you cannot
get a remedy for.
There are a variety of tools that they seem to have used.
It strikes me that that is a bit of a constitutional
abhorration as well if you look back at the history and yet
there does not seem to be much complaining about that either.
I have run out of time, so let me just let you answer that.
That was a longer question than I should have asked.
Professor Siegel. Yes, and I am less confident about
opining because that is starting to fall outside my area of
expertise. I can confirm that the Court has made pleading
standards more difficult. I can confirm that the Court has made
it more difficult to bring class actions than it was before
Justice Alito replaced Justice O'Connor. I think----
Senator Whitehouse. Presumably you can confirm that they
have allowed corporate defendants to steer plaintiffs toward
arbitration?
Professor Siegel. Yes. This is, I think it is fair to
characterize this Court as a very pro-arbitration Court,
enforcing arbitration agreements strictly according to their
terms and keeping potential plaintiffs out of Federal court.
Chairman Cruz. Thank you.
Senator Whitehouse. Mr. Chairman, may I ask permission to
add--I wrote an article for the Harvard Journal of--Harvard Law
and Policy Review, and I would like to ask unanimous consent
that it be added as a----
Chairman Cruz. I am not sure it helps the Committee to have
publications that Harvard has issued, but nonetheless, without
objection, we will allow it.
[The information appears as a submission for the record.]
Senator Whitehouse. Harvard has made the occasional
mistake.
[Laughter.]
Chairman Cruz. You know, it is interesting listening to
some of my colleagues talk about activism, and there is this
notion of relativism. That activism simply means, as Professor
Siegel suggested, a decision with which you disagree.
That is an argument designed to diminish the very notion of
activism, because if it is a decision with which you disagree,
then there is no point in criticizing an activist decision.
Activism has a very specific meaning. It is any time a
judge follows his or her policy preferences instead of the law.
It is not the role of a judge to impose his or her policy
preferences.
There is a marked difference between the decisions that my
friends and colleague, Senator Coons and Senator Whitehouse
focused on, and the decisions at issue from the Court this
term.
Professor Eastman, there was reference made to the Heller
decision. I would like to ask you, is there any textual
provision of the United States Constitution that protects the
right of the people to keep and bear arms?
Professor Eastman. There is, Mr. Chairman, the Second
Amendment.
Chairman Cruz. The Second Amendment. It would be activism
for a judge who agrees with gun control to refuse to enforce
the right of the people to keep and bear arms that is
explicitly protected in the Constitution, is that correct?
Professor Eastman. Senator Cruz, yes.
Chairman Cruz. There has also been repeated reference to
Citizens United. Is there a provision of the United States
Constitution that says Congress shall make no law abridging the
freedom of speech?
Professor Eastman. There is, Senator, the First Amendment.
Chairman Cruz. It would be activism therefore for judges
who happen to agree with campaign finance reform, with muzzling
citizens to keep incumbent politicians in office to refuse to
enforce the text of the First Amendment of the Constitution?
Professor Eastman. I agree with that.
Chairman Cruz. There was another example, Shelby County. Is
there a provision of the Constitution that protects equal
protection and that was specifically passed to prevent
discrimination based on race following a bloody Civil War in
which 600,000 Americans spilled their blood to expunge the
original sin of slavery from this country?
Professor Eastman. Yes, Senator, Article 1 of the 14th
Amendment, Section 1.
Chairman Cruz. I would note Loving v. Virginia, another
decision striking down bans on interracial marriage. There is
that same provision of the Constitution that explicitly says
Government cannot discriminate based on race and we fought a
Civil War to pass that amendment, is that correct?
Professor Eastman. It is the same Equal Protection Clause.
Chairman Cruz. I would note another example that was not--
invoked just a moment ago by Professor Siegel, where he said
this Court is a, quote ``pro-arbitration Court.'' I will be
perfectly honest, I do not give a flip whether this Court as a
policy matter likes arbitration or does not like arbitration.
Has the U.S. Congress passed a statute that presses for
arbitration as a means of resolving litigation?
Professor Eastman. It did, and not only that, Senator, this
Constitution has a specific clause prohibiting the States from
impairing the obligation of contracts, and if that arbitration
clause is part of a contract, it is constitutionally protected.
Chairman Cruz. Let us flip to the other side, the examples
of activism we have talked about on the Obamacare decision 3
years ago.
The statute defined the individual mandate repeatedly as a
penalty. President Obama went on national television and told
the American people, this is not a tax, and yet the Supreme
Court said we will change the word penalty into tax and that
will be the basis for upholding this legislation. Is that
correct, Professor Eastman?
Professor Eastman. Senator, I think it was even worse than
that. The mechanism set up for political accountability in this
body in raising taxes requires that they originate in the House
of Representatives.
That bill did not. In fact, a bill that did originate in
the House of Representatives to propose Obamacare as a tax
failed to gain marked majority support precisely because people
were afraid of having to tell their constituents they had just
imposed a massive tax increase.
What the Supreme Court did in that decision is eliminate
the actual political accountability that the Constitution
envisioned.
Chairman Cruz. Likewise in the most recent Obamacare
decision, the statute said that the individual mandate and the
subsidies and everything else applies to exchanges established
by the State.
Yet the Court changed that to an exchange established by
the Federal Government for a policy outcome. Was that policy
outcome consistent with the text of the statute that a judge is
expected to apply?
Professor Eastman. Not only not with the text of the
statute, but not with the text of the Constitution. I was
surprised to hear Professor Siegel talk about the Constitution
has always been disputed in its meaning, but there are some
things that are unambiguously clear.
Article 1, Section 9 for example, that says no money shall
be drawn from the Treasury but in consequences of
appropriations made by law. That means when the Congress says
an appropriation for those subsidies shall only be for health
insurance purchased on exchanges established by the State,
there is no authorization for money to be drawn from the
Treasury to provide subsidies for any other type of exchange,
and yet the Executive did that and the Court ratified that
decision with its, I believe, not only unlawful and unwarranted
but unconstitutional decision.
Chairman Cruz. We have discussed a series of decisions with
which some Members of this Committee disagree, whether it is
Heller because they disagree with the Second Amendment to the
Bill of Rights, whether it is Citizens United because they
disagree with the First Amendment to the Bill of Rights,
whether it is Shelby County because they disagree with the
prohibition of discrimination based on race in the 14th
Amendment to the Constitution.
I would ask in contrast Roe v. Wade a decision some Members
on this Committee agree with. Is there one word anywhere to be
found in the United States Constitution that creates a right to
abortion?
Professor Eastman. No, Senator, there is not.
Chairman Cruz. The Obergefell decision that some Members of
this Committee support, is there one word anywhere in the
United States Constitution that creates a right to same-sex
marriage?
Professor Eastman. No, there is not.
Chairman Cruz. We have a clear and simple metric for
judicial activism. If you are following the Constitution, it is
not only not activist, it is honoring your oath. If you are
imposing your own policy preferences in contravention of the
text to the Constitution, then it is the essence of activism
and it is the obligation of this body to reign in such judicial
tyranny.
Professor Eastman. Senator, I agree with that. One of the
things I thought most interesting about Senator Whitehouse's
comments is how it proves the very issue of judicial supremacy.
He did not resort to the First Amendment or the Second
Amendment and say Heller and Citizens United violated those.
What he did say that they violated prior decisions of the
Supreme Court. That establishes that the Supreme Court when it
speaks is now the Constitution unto itself, that is the very
challenge of judicial supremacy that Mr. Whelan and I are
talking about here and that I think we need to address.
Chairman Cruz. Thank you, Professor Eastman. Senator Coons.
Senator Coons. If I might, Professor Siegel. Just looking
at the language within both of these cases. There is some
really striking disrespect shown to the majority opinion in
these two cases.
I could quote at length Justice Scalia's comments, one
about hiding his head in a bag, the other about the Supreme
Court having essentially put on the jerseys of the Obama team
if I could paraphrase from my colleague here.
Is the disrespect shown in the majority opinions in these
two cases usual and typical? If not, what does it say, excuse
me, the disrespect in the minority opinions toward the majority
opinions, what does that say about the current Court and its
direction?
Professor Siegel. I think the language is unfortunate. I
think it is intemperate. I say this as someone who knows
Justice Scalia and likes Justice Scalia. He taught in our Duke
and Geneva program and I helped him and he was absolutely
wonderful. He taught a separation of powers course and we had a
great time debating various issues.
I think it is intemperate. I think it is--I insist when I
teach these courses, I am teaching them now to my students in
DC that this is not how lawyers are supposed to conduct
themselves, saying that you would hide your head in a bag
rather than join this decision.
I also do not think it is the other Justices. I think they
occasionally get angry, they occasionally have some sharp
elbows, but that kind of language it seems to me to be as more
specific to Justice Scalia and I think the other Justices have
just decided they are not going to respond in-kind and it is
not just like Justice Scalia talks that way to only certain of
his colleagues.
He can really get into it with other colleagues. Disagree,
disagree vigorously, explain your reasons, but I just do not
think it is appropriate to tell the world really and to perform
for the world that you can disrespect so personally the views
of someone with whom you disagree.
Senator Coons. I support religious freedom and the ability
of people to express their beliefs free from penalty or
constraint, but some of the legislative proposals that have
been put forward that purport to defend religious liberty
against same-sex marriage, one of the issues we have talked
about at length would in effect amount to a statutorily
protected right to discriminate against gay people.
Could you talk about the protections that families headed
by same-sex couples have a demonstrable need from
discrimination in the workplace when hiring and what some of
the consequences of the proposed legislation, not really the
subject of this hearing, but referenced by a number of my
colleagues? What sorts of impact that might have.
Professor Siegel. Yes. I think it is a very important
question going forward. You have protections in Federal law for
discrimination in the workplace and housing based on race,
based on sex, based on religion and going forward now you can
have same-sex couples who have officially outed themselves by
availing themselves of their right to marry and that I think
can make them vulnerable to discrimination in the workplace, to
discrimination in abilities to obtain housing, to be served in
public accommodations.
I would hope not withstanding how much disagreement there
is over the issue of same-sex marriage that we could come to
more of a consensus that discrimination on the basis of sexual
orientation in the workplace and housing is a place we do not
want to go to or continue in that--the Federal Government, that
Congress should pass anti-discrimination measures to prevent
that from happening or continuing to happen.
Senator Coons. I support those sorts of, antidiscrimination
measures I think there will be legislation soon in this
Congress to that effect.
Gay marriage is obviously an issue that touches on deeply
held convictions on both sides and even so I question what
authority lower courts and State officials have to disregard a
decision of the Court. I am frankly struck to see Mr. Whelan's
invocation in his written testimony of President Lincoln's
disobedience of the Dred Scott as precedent for local officials
to deny same-sex couples the right to marry in contravention of
what I believe to now be controlling law.
Has there been any similar response to a Supreme Court
decision since Governor Wallace stood in the schoolhouse door
in order to prevent the integration of the University of
Alabama?
Professor Siegel. I mean, massive resistance to Brown is
something that comes to my mind when I consider some of the
proposals that are on the table on the years with which local
officials resisted Federal court orders to integrate their
schools to comply with the Brown decision.
I think it is a cause of concern when local officials are
invoking religious liberty not to perform their public
responsibilities. Having said that, I understand, I think it is
important to see the world from their point of view and
understand that they regard themselves as being called on to
enforce a deeply unjust law, and the basic problem of what do
you do when you think the law is deeply unjust has a long
history in this country.
In the slavery days, what about abolitionist judges?
Justice Scalia has said that if judges cannot in good faith
apply the death penalty, they should simply resign. There is
force to what he is saying, but I also think that is a little
too forceful.
You can resign, you can recuse if that is a possibility,
but simply saying that I am not going to perform my public
responsibilities, we would not allow that on the basis of race.
I do not think we would allow that. We certainly ought not to
on the basis of sex, and so I am concerned about allowing that
on the basis of sexual orientation.
Senator Coons. My last question about the proposals for
restraining judicial activism. Do you have confidence that the
Justices would have decided Brown v. Board the way they did had
they faced judicial recall elections?
Professor Siegel. It certainly worries me. It is very easy
in retrospect to look at Brown and say it was so obviously
right, it was inevitable. You had almost 100 southern
Congressmen signing the Southern Manifesto in response to
Brown, calling it lawless, calling it the equivalent of
activism, invoking the text and original understanding in
American history and a traditional authority of the States to
regulate the schools as well as the relations among the races.
The Brown Court was courageous. It made a bet with
constitutional destiny and it could have lost. It almost lost.
I do not know whether they would have had the courage that they
had if they were looking over their shoulders and wondering
about their jobs.
I hope they would, they might have, but I cannot say with
certainty that that is what would have happened.
Senator Coons. Brown was actually, as you know, the
combination of a variety of cases from several States. The only
one which was affirmed as having been correctly decided below
is a case from Delaware in which a Delaware judge had ordered
the integration of schools based on a case that came from my
hometown of 1,500 and I think he was an unusually brave and
unusually forward looking very young judge at the time. I do
think that if the Supreme Court Justices or frankly the judges
of my home State had been subject to recall elections, we would
not have seen the progress that we saw at the time. Thank you,
Professor.
Chairman Cruz. Thank you, Professor. I would note that
Brown v. Board of Education was a decision that was in my
judgment unequivocally correct and it was vindicating the
explicit text of the Constitution just like each of the
decisions I went through with Professor Eastman.
I would also note that those southern Members of Congress
who decried Brown as lawless because they disagreed with it as
policy members were all or virtually all Democrats. They
disagreed with it as a policy matter and so they decried it and
they wanted the Court to ignore the text of the Constitution
and continue discriminating based on race. Senator Sessions.
Senator Sessions. I think that is correct. I think Brown
was a courageous decision, but it was certainly one well-
founded in the plain text of the Constitution and it reversed a
lot of decisions incorrectly held previously.
On the question of marriage, let us be clear. I am not
aware of any circumstance in which people could not gather and
have a same-sex ceremony, declare themselves married.
The question is whether or not the State recognizes it for
a position, for such things as passing on your social security
or other benefits that the State must recognize. Drawing a
bright line throughout history most States have decided
otherwise, decided you should not recognize it, although some
States were voting differently and changing the law.
We had a situation, I think, that was perfectly harmonious
with democracy. I do think the descents were unusually strong.
Scalia was I think clear, powerful, and correct. I mean, we
have to make a decision in this world. Are there such things as
right and wrong, correct and erroneous? Scalia was correct. The
majority was erroneous.
There is no basis in the Constitution for that ruling. We
live in a real world and Mr. Whelan, I will ask you. What did
the Supreme Court say in the marriage decision that would
justify their ruling? How did they attempt to find and what did
they say?
Mr. Whelan. I am not the best person to try to paraphrase
Justice Kennedy's pompous moralizing. What he basically said is
we have this fundamental right to marriage, which he concedes
has always been a union of a man and a woman, but he posited in
a few paragraphs that are very difficult, as many Kennedy
opinions are, to decipher, that somehow the very reasons we
have had marriage apply with full force, I think he says, to
same-sex relationships.
I cannot make heads or tails of that, just as one can study
Planned Parenthood v. Casey or Romer v. Evans for years and not
be able to discern what the actual rationale is.
Senator Sessions. Just let me follow up then. Some people
say that it was poorly written as you have indicated. Is not
the real problem there was no defense that they could write to
justify this if you show fidelity to the constitutional order?
Mr. Whelan. I think that is absolutely right. You have a
lot of leftist academics who say right result, poorly reasoned.
I am sure that another Justice might have written something
that would get more applause from the academics for making it
up in a more sophisticated way. Maybe it is a blessing in
disguise that Justice Kennedy wrote the opinion as ineptly as
he did.
I do want to say when people talk about intemperate
dissents, the whole concept of what is intemperate has to be
compared to what? When you have here a decision that is
overriding the central social institution of American society,
I do not see how any level of disagreement with that could be
fairly criticized as intemperate.
Senator Sessions. I think that is correct. In my view, the
majority committed an enormous constitutional wrong, an
enormous erosion of respect for law in America. They did it and
they deserve the harshest criticism. They did it because they
had ideological view that they wanted to impose and they got
five to agree and they did it and it is not right and the
American people have been diminished as a result of it. The
constitutional order has been diminished.
Mr. Chairman, you have brilliantly laid out what activism
is and I do not expect to win every case in the Supreme Court
and I do not expect to win every battle in Congress, but I know
what my powers are and what my powers are not and judges who
exceed their power on the theory that nobody can stop us and
they will always get away with it is a dangerous thing. I just
worry about it. Thank you for the Committee hearing and I do
think we should continue this discussion.
Chairman Cruz. Thank you, Senator Sessions. Senator
Whitehouse.
Senator Whitehouse. Thank you, Chairman. I would only add
that I know and actually am very, very fond of quite a number
of Americans who are not at all diminished as a result of the
Obergefell decision. In fact, they would argue that if there is
such a word as undiminished, they have just been undiminished
by it.
The Chairman took Dr. Eastman through the private right
decision in Heller and pointed out that that was connected
textually to the Second Amendment to the Constitution, as were
all of the previous decisions that it overruled connected
textually to the Second Amendment of the Constitution.
The campaign finance decision, Citizens United, they agreed
with textually connected to the First Amendment, as were
previous decisions that were overruled by Citizens United.
Professor Siegel, was the Obergefell decision textually
connected to any part of the U.S. Constitution? Or was it just
a whimsy of these five judges?
Professor Siegel. I am staring at Section 1 of the 14th
Amendment and it talks about denying liberty without due
process of law. It also talks about not denying any person
within its jurisdiction the equal protection of the laws. So--
--
Senator Whitehouse. What part of equal is not at issue in
Obergefell?
Professor Siegel. Equal and liberty. I think there are two,
actually three very strong rationales to explain why bans on
same-sex marriage violate the Constitution.
It is discrimination on the basis of sexual orientation, it
is discrimination on the basis of sex and it is an
infringement--unjustified infringement of the fundamental right
to marry, and so I think you have to say more than just
invoking different provisions of the Constitution.
You have to do a lot of work to get from Congress shall
make no law abridging the freedom of speech to corporations may
make unlimited expenditures through their general treasury
funds to influence the outcomes of elections. You have to do a
lot of work to get from a well regulated militia being
necessary to the security of a free State, the right of the
people to keep and bear arms shall not be infringed to the
right in Heller, which is why it takes from 1791 to 2008 to get
there. It actually takes 30 years of social movement advocacy
to take this understanding of the Second Amendment from off the
wall to on the wall.
The Heller Court's reading effectively excises the purpose
clause. That purpose clause, that initial clause tells you. It
is a rare statement in the Constitution about what a particular
provision is supposed to be doing, and it focuses on the
militia.
Lots of--lots of influential serious scholars have studied
the matter and defended the Heller Court's decision. I think
that is within the range of reasonable disagreement. I also
think the Liberty Clause of the 5th and 14th Amendment could
defend--could be used to support the Heller decision.
In fact, I think Justice Alito's decision in McDonald is
better reasoned than Justice Scalia's in Heller because of the
history and tradition of firearm ownership. With respect to all
these cases, you cannot just insight various provisions of the
text of the Constitution and then say a decision is correctly
decided. You have to do what John Marshall did.
Senator Whitehouse. Because, in fact, the previous
decisions that were overruled by these decisions cited the very
same textural provisions, correct?
Professor Siegel. That is right. I mean, you are talking
about engaging judicial precedent, you are talking about
engaging historical practice, you are talking about not just
the text but the purpose of the text. You are talking about the
pre- and post-ratification history, you are talking about
implications of the constitutional structure.
This is the bread and butter work of constitutional law as
the Chairman knows very well given his distinguished career.
Senator Whitehouse. The elements that you have just
described in the practice of constitutional law recur over and
over and over and over and over again in the U.S. Supreme Court
precedent no matter what particular provision of the
Constitution they are expounding?
Professor Siegel. That would be my view.
Senator Whitehouse. Yes. All right. Thank you very much.
Chairman Cruz. Thank you, Senator Whitehouse. I would note
that Senator Hatch has submitted a written statement that will
be added to the record without objection.
[The information appears as a submission for the record.]
Chairman Cruz. I want to thank each of the witnesses who
came here today and provided learned testimony. Thank you. I
would like to thank each of the Members of the Committee for
the beneficial discussion.
Indeed we saw something that rarely occurs in the U.S.
Senate, which is actually debate. That is a wonderful thing and
I hope we see more of it.
We will be keeping the hearing record open for an
additional 5 business days which means the record will be
closed at the end of the business day on Wednesday, July 29th,
2015. Thank you to everyone. This hearing is now adjourned.
[Whereupon, at 3:25 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Miscellaneous submissions:
American Constitution Society for Law and Policy................. 86
Building the Resistance to Same-Sex Marriage, June 22, 2015...... 118
Building the Resistance to Same-Sex Marriage, June 23, 2015...... 124
Building the Resistance to Same-Sex Marriage, June 24, 2015...... 129
Hostettler, John. N., statement.................................. 114
Koskinen, John A., letter........................................ 134
Stacy, David, statement....
...................................... ....................... 135
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