[Congressional Record Volume 147, Number 25 (Wednesday, February 28, 2001)]
[Senate]
[Pages S1671-S1673]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           U.S. SUPREME COURT

  Mr. LEAHY. Mr. President, I have become increasingly concerned about 
some of the recent actions of the U.S. Supreme Court. As a member of 
the bar of the Court, as a U.S. Senator, as an American, I, of course, 
respect the decisions of the Supreme Court as being the ultimate 
decisions of law for our country. As an American, I accept any of its 
decisions as the ultimate interpretation of our Constitution, whether I 
agree or disagree. I have probably supported the Supreme Court and our 
judicial system more than anybody else on this floor.
  Having said that, I think we can at least still have in this country 
a discussion of some of the things the Court has done. Recently, we 
have seen another assault by the Court on the legislative powers of 
Congress.
  My concern may be more in sadness than in anger over what has 
happened. It is very easy to give talks about activist Supreme Courts, 
but it is hard to think of a time, certainly in my lifetime, with a 
more activist Supreme Court than the current one. Last week, the Court 
held that State employees are not protected by the Federal law banning 
discrimination against the disabled. The case was decided by the same 
5-4 majority that brought us

[[Page S1672]]

Bush v. Gore and other examples of judicial activism, the so-called 
``conservative'' wing of the Rehnquist Court.

  I accept they are indeed ``conservative'' in the sense that they 
greatly restrict the role of the Federal Government in protecting the 
individual rights and liberties of ordinary Americans. They are very 
conservative in the sense they have decided that the unelected five-
member majority can go against the overwhelming bipartisan position of 
the elected Members of the House and the Senate, Republican and 
Democrat.
  The case I speak of involved two Alabama State employees. Patricia 
Garrett sued the University of Alabama for demoting her when she 
returned to work after undergoing treatment for breast cancer. Milton 
Ash sued the State Department of Youth Services for refusing to modify 
his duties and work environment to accommodate his medical problems, 
which included chronic asthma.
  These are precisely the sorts of grievances Congress set out to 
remedy when it passed a landmark civil rights law called the Americans 
with Disabilities Act, commonly known as the ADA. I was proud to be 
part of the overwhelming bipartisan consensus that passed the ADA--
proud because of the principles the ADA stands for. It stands for the 
principle that America does not tolerate discrimination against those 
in our society who suffer misfortune and illness. It stands for the 
principle that every disabled person in America is entitled to be 
treated fairly in the workplace. And it stands for the principle that 
all employers, whether government or private employers, should be held 
accountable in a court of law when they violate the rights of the 
disabled.
  Nondiscrimination, fairness in employment, and government 
accountability are each important core values in our society. They are 
principles that the American people know well and hold dear. They are 
the values that the first President Bush upheld when he signed the ADA 
into law. I remember it very well, that day at the White House when he 
signed the law. He reminded the Supreme Court of these principles when 
he took the unusual step of writing an eloquent brief to the Supreme 
Court in support of the ADA and in support of Patricia Garrett and 
Milton Ash's right to their day in court. I applaud him for that.
  Sadly, last week the activist wing of the Supreme Court paid little 
heed to the view of either democratic branch of our government--the 
Congress that enacted the ADA or former President Bush who signed it 
into law. These five activist Justices gave short shrift to the core 
values of the American people that the ADA embodies.
  Instead of protecting the disabled from discrimination, they denied 
the disabled their day in court. Instead of requiring fair treatment 
for all American workers, they created a special exception limiting the 
rights of government workers. Instead of promoting government 
accountability, they championed, above all else, the obscure doctrine 
of State sovereign immunity. That is legalese for saying the government 
gets a special exemption, preventing it from being held accountable in 
a court of law.
  We hear a lot of rhetoric, complaining about so-called ``activist'' 
judges. I have heard it used by my friends on the other side of the 
aisle to describe Democratic judicial appointees who say they will 
uphold settled law, such as Roe v. Wade, or those who have been 
associated with public interest organizations that have fought to 
defend individual civil liberties. It is sometimes applied even to 
conservative Republican appointees such as Justices O'Connor and 
Kennedy, when it is felt that they are not being conservative enough.

  When he served on the Judiciary Committee in the Senate, our new 
Attorney General gave a speech on what he called ``judicial 
despotism.'' He complained about ``the alarming increase in activism'' 
on the Supreme Court. He referred to the majority of the Court, 
including Justice Kennedy, as ``ruffians in robes.''
  I do not use such language. That kind of name calling does no good 
for the mutually respectful relationship among the three branches of 
government, the relationship that our Constitution and the American 
people call for. I have refrained from using such language, even when I 
strongly disagree with a decision, such as the 5-4 decision in Bush v. 
Gore, when the Supreme Court, in effect, decided a Presidential 
election.
  But I mention the question of activism because the American people 
should know that activism does not come in just one flavor. Some would 
say judicial activism and liberal activism are one and the same. Of 
course they are not. Judicial activism can work both ways. It can work 
to expand protections for all our rights or it can be used to limit our 
rights.
  As one of the Nation's leading constitutional scholars, Professor 
Cass Sunstein, pointed out in an article last month, history teaches 
that for most of the 20th century, judicial activism was predominantly 
conservative, and the unelected judicial branch was far to the right of 
the democratic branches of our Government.
  Actually, that is where we are today at the start of the 21st 
century. The reality today in courts such as the U.S. Supreme Court and 
Fourth Circuit that are dominated by ideologically conservative 
Republican appointees is that the dominant flavor of judicial activism 
is right wing. In fact, I do not think we have seen such right-wing 
activism in the courts since the ultra conservative Supreme Court of 
the 1920s and the 1930s.
  There is also, as some commentators have pointed out, an almost 
arrogant disregard of the Congress by the Supreme Court. There is a 
feeling that the Congress is somehow unable, even in those cases where 
Republicans and Democrats join hands in an overwhelming majority--that 
somehow we are unable to express the will of the people or uphold the 
Constitution.
  In statements that the Court has made, it acts as though the Congress 
is almost unnecessary; that we are not competent to do anything; that 
we are irrelevant. Well, not totally irrelevant. I have heard from the 
Justices that they do want a pay raise. Last year, of course, they were 
asking for permission to give high-paying speeches to special interest 
groups. I am glad the Court believes we are good for something.
  Last week's ruling is really just the latest in a long and ever 
growing line of 5-4 decisions that second-guess congressional policy 
judgment to strike down Federal statutes and generally treat Congress 
as a least favored administrative agency rather than a coequal branch 
of the Federal Government.
  Last year the Court took aim at the Age Discrimination in Employment 
Act and the Violence Against Women Act. Before that, it was our laws on 
intellectual property and workplace standards. Before that, it was our 
gun control laws.
  Now the Court's ``federalism'' crusade adds workers with disabilities 
to its growing list of victims: older workers, children in gun-infested 
schools, intellectual property owners, and victims of violence 
motivated by gender, to name just a few.

  If you accept the common theme of this 5-4 majority in the U.S. 
Supreme Court, the Congress ought to just close up shop and leave town 
because they will do everything for the American people. The elected 
representatives of the American people are unnecessary with, as I said, 
the possible exception of voting for the pay raise that the courts have 
asked for.
  Now it is up to another President Bush and another Congress to seek 
new ways to protect the rights of disabled Americans and the rights of 
the other groups sacrificed on the Court's altar of federalism. I 
believe Congress needs to reassert its Democratic prerogatives--
respectfully but firmly. Congress needs to reassert, in fact remind, 
the Supreme Court of the Constitution, that we are a coequal branch of 
government whose policy determinations deserve respect just as they ask 
respect for their legal determinations. It is time for the people's 
elected representatives, Democratic and Republican, to reengage the 
bipartisan consensus of principle that produced the ADA, and to work 
together to restore the rights of ordinary Americans that have been 
taken away by an increasingly activist U.S. Supreme Court.
  Again, as I have said, I have stood on the floor of the Senate 
defending the Supreme Court as much or more than

[[Page S1673]]

anybody I know in my 26 years here. I have defended the Supreme Court 
on decisions even when I disagreed with the Court. I did that even with 
respect to the 5-4 decision on the Florida election--actually the 
national election. While I felt the Court was wrong, I stated that its 
decision was the law and that we must all abide by it.
  But I am disturbed by this increasingly dismissive tone of the Court, 
in which it acts as though the Congress, Republicans and Democrats 
together, do not have the ability to represent the American people. The 
fact that we were elected by people all over this great Nation is 
almost irrelevant. In the ADA case, the fact that we had spent years on 
this, and that a Republican President had strongly supported our 
position, was irrelevant.
  I think it is a dangerous path, just as it would be a dangerous path 
for us to be dismissive of the U.S. Supreme Court. It is equally 
dangerous for the Court to be dismissive of the Congress because 
ultimately the American people suffer. We as a Nation have maintained 
our democracy and fostered our wonderful growth because of our 
separation of powers--because of the way we have sustained the three 
equal branches of Government. What a shame it would be if one branch, 
the only unelected branch, continued to be so dismissive of the other 
two branches, both elected.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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