[Congressional Record Volume 158, Number 68 (Monday, May 14, 2012)]
[Senate]
[Pages S3124-S3126]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SUPREME COURT REVIEW

  Mr. LEAHY. Madam President, I was fortunate to be able to attend the 
argument before the U.S. Supreme Court on the constitutionality of the 
provision in the affordable care act providing that individuals should 
take personal responsibility for paying for their health care by 
obtaining health insurance or pay a fine. I have watched a lot of 
arguments in the Supreme Court. Obviously, as the chairman of the 
Judiciary Committee I pay close attention--as do all Members--to what 
goes on there. I heard a great deal of instant analysis from 
commentators after the argument, including their predictions on how the 
Court will rule. I didn't hear much devoted to the role of the Chief 
Justice of the United States.
  When I watched the arguments, I saw a Chief Justice that day who I 
thought seemed well aware of the significance of this decision. Chief 
Justice Roberts had not been appointed when the Court intervened in the 
Presidential election of 2000, but he certainly saw the reaction to 
that decision in Bush v. Gore, a 5-to-4 decision that the country 
viewed as partisan. In fact, many in the country felt that five people 
on the Supreme Court decided a Presidential election that was actually 
for the person who got less votes than the one they said lost. That 
decision was unprecedented. In a shocking admission, the Court itself 
said that it should never be considered precedent or cited in the 
future. That decision shook the confidence of the American people in 
the Supreme Court and, as Justice Stevens observed at the time, the 
loser in that decision was ``the Nation's confidence in the judge as an 
impartial guardian of the rule of law.'' That activism undermined the 
reputation of the Court as fair and impartial.
  But the Chief Justice did participate in the Court's recent 5-to-4 
decision in Citizens United that divided along ideological lines and 
continues to engender a significant backlash. That decision was one in 
which the Supreme Court reached out to decide a matter not argued 
initially and in which it made a broad constitutional ruling that 
reversed nearly 100 years of progress in the country to control the 
corrupting influence of money in our elections and politics. That 
decision led directly to the super PACs and campaign excesses that are 
now plaguing our Democratic elections, and actually plagued this year's 
Republican Presidential primaries. As bad as its effect is on both 
Republicans and Democrats and elected offices, I believe it has 
contributed to the further erosion of the public's confidence in the 
Supreme Court to be an independent arbiter.
  The constitutional challenge to the affordable care act is the 
current instance in which narrow ideology and partisanship are 
pressuring the Supreme Court to intervene where it should not, to 
override the law and constitutional legal understandings that have been 
settled since the Great Depression, and also to overturn the actions of 
the people who are elected to represent all Americans in both the House 
and the Senate. I was struck by how little respect some of the Justices 
showed to Congress and of how dismissive they were to the months of 
work that included dozens of hearings, or the committee actions and the 
debate of amendments and motions and points of order on the Senate and 
House floors before the measure was enacted, how that was almost 
summarily dismissed by some.
  Their actions will not help restore Americans' confidence in the 
Court to fairly apply the law. According to a recent poll, half of all 
Americans expect the justices to decide the challenge to the affordable 
care act mainly based on their ``partisan political views,'' while only 
40 percent expect them to decide the case ``on the basis of the law.'' 
That has contributed to the historically low percentage of Americans, 
fewer than half, that said in a recent poll that they approve of the 
Supreme Court.
  I am not going to be offended if some of the Justices don't like us 
personally or disagree with the policy judgments reflected in the law 
as individuals, as citizens, or as human beings; they are entitled to 
their personal views just as we are. But as Justices, they are supposed 
to put those petty personal views and feelings aside. They are supposed 
to begin their inquiry by respecting the will of the people as 
reflected in the work of Congress and to defer to Congress unless the 
laws we pass violate the Constitution. However, during the argument, it 
seemed that the Justices were second guessing the policy judgments that 
were made during the extended legislative process. That is not the 
purpose or proper exercise of judicial review. Acting out based on 
their personal views in this matter would be the height of conservative 
judicial activism. Let me repeat that. Acting out based on their 
personal views in this matter would be the height of conservative 
judicial activism.

  The Chief Justice seemed to understand that deference to the elected 
branch is fundamental to the proper exercise of judicial review. I was 
struck that more than once he commented on the extreme arguments coming 
from other Justices by noting they were not being fair. Chief Justice 
Roberts was right in that regard.
  I thought I saw--at least the day I watched--a Chief Justice who 
understands the importance of this case to all Americans, including 
those millions who would otherwise continue without health care 
insurance and access to affordable health care--the kind of health care 
insurance and access to affordable health care each one of us in this 
Chamber has and each member of the Supreme Court has. This case is also 
significant because of the impact it will have on the American people's 
view of the Supreme Court.
  We all remember when the Chief Justice was nominated, and he 
testified that if confirmed, he would act with judicial modesty, he 
would honor precedent, and he would acknowledge the

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limited role of the judiciary and seek to bring the Court together. 
When I voted to confirm Chief Justice Roberts as Chief Justice of the 
United States--and many of my Democratic colleagues voted the other 
way, and I respect them for that--I said that I was voting with hope 
and faith. I credited his testimony. I trusted that he would act to 
fulfill his responsibilities in accordance with the testimony he gave 
to the Senate.
  I said then that if I thought he ``would easily reject precedent'' or 
``use his position on the Supreme Court as a bulwark for activism,'' I 
would not have supported his confirmation. I contrasted the technical 
reasoning and unjust holding of Chief Justice Taney in the Dred Scott 
case with the leadership that Chief Justice Warren provided in the 
unanimous decision in Brown v. Board of Education. I spoke about the 
need to curtail the current activism of the Supreme Court and for 
appropriate deference to congressional action taken by the people's 
elected representatives, which is precisely what should happen in the 
matter currently before the Supreme Court.
  I was encouraged by the assurances he gave during the confirmation 
process that he would respect congressional authority. Well, this case 
is a fundamental test. After all, he relied heavily during the hearing 
on the recent Gonzales v. Raich decision as controlling precedent in 
upholding congressional authority to act under the Commerce Clause. He 
also assured us that despite his previous record of advocacy, as Chief 
Justice he would not continue to urge additional restrictions on 
Congress's Spending Clause powers.
  I trust that he will be a Chief Justice for all of us and that he has 
a strong institutional sense of the proper role of the judicial branch. 
It is the Supreme Court of the United States, not the Supreme Court of 
the Democratic Party or the Republican Party; not the Supreme Court of 
liberals or conservatives but the Supreme Court of the United States. 
And the Chief Justice is the Chief Justice of the United States, all 
320 million of us. The conservative activism of recent years has not 
been good for the Court.
  Given the ideological challenge to the Affordable Care Act and the 
extensive, supportive precedent, it would be extraordinary for the 
Supreme Court not to defer to Congress in this matter that so clearly 
affects interstate commerce. This case should not become an instance in 
which a conservative, activist majority on the Supreme Court intervenes 
by way of another 5 4 decision driven by ideology to rewrite the law. 
The law is consistent with the understanding of the Constitution the 
Court and the American people have had for the better part of a 
century, and should be upheld. To do otherwise would undoubtedly 
further erode the reputation and legitimacy of the Supreme Court.
  Last month's Supreme Court argument gave me reason to hope the 
Supreme Court will do the right thing. The authority of Congress to 
enact the Affordable Care Act is firmly rooted in what previous 
Congresses enacted and the Supreme Court has upheld as constitutional 
over the last century to protect hardworking Americans. Working 
Americans have long been required to pay for Social Security and 
Medicare by the deduction of taxes reflected in their paychecks every 
month. I said at the time that, after all, if they could overturn the 
Affordable Care Act, why couldn't they overturn Social Security or 
Medicare? There would be just as much reason to overturn those.
  The key to the test for constitutionality under the Commerce Clause 
is whether the law substantially affects interstate commerce. That is 
the long-established constitutional test supported time and time again 
by the Supreme Court. As a law passed by Congress passed to regulate a 
market that makes up one-sixth of the U.S. economy, the Affordable Care 
Act is well within the limits set by the Supreme Court's own precedent 
on Congress's Commerce Clause power.
  The personal responsibility requirement that is the focus of the 
legal challenge is necessary to ensure that Americans who have paid for 
their health care by buying health insurance are not stuck with paying 
the $43 billion in health care costs incurred by millions of Americans 
who do not buy health insurance and then must rely on expensive 
emergency health care when inevitably faced with medical problems. That 
is what Congress concluded after extensive study and debate and what we 
included in the text of the law itself. There is no question this act 
by Congress regulates matters undeniably affecting interstate commerce.
  Even though this law easily meets the tests established by the 
Supreme Court's own precedent on the limits of the Commerce Clause, 
partisan opponents of President Obama want judges to override these 
legislative decisions properly made by Congress, the elected 
representatives of the American people. They want to challenge the 
wisdom understood by generations of Supreme Court justices from the 
great Chief Justice John Marshall in upholding the constitutionality of 
the national bank nearly 200 years ago to Justice Cardozo in finding 
Social Security constitutional early in the last century.

  The outlandish examples of hypothetical laws Congress has not passed 
reduce these matters to ridiculous absurdities. That may be popular in 
Federalist Society circles or on political blogs or to those who want 
to bind the Constitution enough to be on a bumper sticker slogan, but 
they have no place in the Supreme Court's determination. There may come 
a time when Congress passes a law that is law at the edge of its 
authority, when the boundary of what should be seen as affecting 
commerce needs to be more closely considered. That time may come. I 
hope it doesn't. That time may come, but this is not the time and this 
is not the case. The Affordable Care Act is squarely within 
longstanding constitutional lawmaking to deal with an important 
national problem.
  For years, we have heard Republican Senators say that they do not 
want judges making law from the bench. That is precisely what they are 
asking the Supreme Court to do in this case. Republican opponents lost 
in Congress. Their opposition and obstruction delayed but did not 
prevent enactment of the Affordable Care Act. Now they want 
conservative activists on the Supreme Court to intervene and turn their 
policy disagreements into law by reading them into the Constitution. 
That is wrong.
  In his efforts to reach out to Republicans, the President adopted a 
model Republicans proposed in the 1990s so as not to replace private 
insurance with a program of Government insurance like Medicare, but to 
rely on personal responsibility to obtain private insurance in the 
marketplace or pay a tax penalty. What is telling about the partisan 
nature of these challenges is that many of those who now claim that 
this is unconstitutional are the very ones who proposed it. Senate 
Republicans were in favor of ensuring personal responsibility with an 
individual mandate until President Obama was for it, and now they are 
against it. Their views may have changed, their partisan interests may 
have shifted, but the Constitution has not.
  Americans are already beginning to see some of the benefits of the 
Affordable Care Act. Seniors on Medicare who have high-cost 
prescriptions are starting to receive help when trapped within a 
coverage gap known as the ``donut hole.'' Since the Affordable Care Act 
was signed into law, young adults in Vermont and around the country 
have gained health insurance coverage by being able to stay on their 
parents' health insurance plans until their 26th birthdays. Americans 
are receiving preventative screening coverage with no deductible or co-
pay. The law is making possible more and better care while controlling 
costs.
  The Affordable Care Act builds on some of the cornerstones of 
American economic security built over the last century. I believed that 
when it passed, and I still believe it today, that Congress acted 
within its constitutional authority to enact laws to help protect all 
Americans. Just as some in this country disagreed when Congress passed 
Social Security, the Court agreed that we acted within our authority to 
do so. One may agree or disagree with parts of the Affordable Care Act, 
but the fact is that Congress acted within its authority. I hope and 
have faith that the Supreme Court will not overstep the judiciary's 
role by substituting policy preferences for the legislative 
determinations of Congress.

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