[Congressional Record Volume 163, Number 176 (Tuesday, October 31, 2017)]
[Senate]
[Pages S6931-S6932]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         OUR SYSTEM OF JUSTICE

  Mr. CASEY. Mr. President, I rise this evening to talk about our 
system of justice. If we were to walk out from the Senate, out the 
front door, and across the front of the Capitol directly, we would find 
ourselves across the street from the U.S. Supreme Court.
  As everyone knows, inscribed across the front of the U.S. Supreme 
Court are these words: ``Equal justice under law''--a pretty simple 
statement about our system of justice, but of course that has a 
profound meaning in our system.
  Hundreds of years ago, Saint Augustine said the following about 
justice: Without justice what are kingdoms but great bands of robbers.
  So we have always had this focus on what justice means. It came into 
sharper focus, of course, when our Nation was born. We set up three 
branches of government--or, I should say, our Founders set up three 
branches of government--one of them being the judiciary and, of course, 
that was followed, after the Constitution was ratified, by the 
Judiciary Act of 1789. We have had that system of justice in one form 
other another all these years.
  In so many ways, our system of justice sets us apart from the world. 
Our

[[Page S6932]]

system of justice, though it is often strained and stretched and 
sometimes undermined, is still the envy of the world. It does set us 
apart. We know that throughout our history--and even more recently--
there are several examples of one judge being able to stop the 
executive, one judge being able to reverse policy or, at least, force 
the executive to make amendments to an Executive order, as has happened 
over the last couple of months.
  I think we always have to ask ourselves whether or not our system of 
justice is getting it right, whether or not the balance is there. There 
are lots of ways to express the tension between one side and another in 
our system of justice. One way to express it--not the only way, but one 
way, when you consider the awesome appropriate power in a nation like 
ours--is, Will we have a system that allows everyone to get a fair shot 
at justice, to literally fulfill the obligation or the goal of equal 
justice under the law? Or will we have a system of justice that 
rewards, supports, or seems to find in favor of corporate interests or 
have a court, whether it is the Supreme Court or a Federal court of one 
kind or another, that is beholden to corporate interests? So one way to 
suggest the tension and sometimes the conflict is to have a fair shot 
for everyone versus a corporate tilt or a corporate court or a 
corporate justice system.
  I would have to say that when you look at some of the evidence most 
recently, the Supreme Court under Chief Justice Roberts has been an 
ever more reliable ally to both big corporations and those with great 
power, those with great wealth. A major study published by the 
Minnesota Law Review in 2013 found that the four conservative Justices 
currently sitting on the Court--Justices Alito, Roberts, Thomas, and 
Kennedy--are among the six most business friendly Supreme Court 
Justices since 1946. So found the major study in the Minnesota Law 
Review just 4 years ago. So four Justices on the Court now were found 
among the six most business friendly. That is one indicator.
  Another review by the Constitutional Accountability Center, which, of 
course, is ongoing as decisions are handed down, shows the consequences 
of the Court's corporate tilt, finding that the Chamber of Commerce has 
had a success rate of 70 percent--7-0, a success rate of 70 percent--in 
cases before the Roberts Court, a significant increase over previous 
Courts. So these are two major indicators of the corporate tilt of this 
Supreme Court.
  Now, these cases are important to every person--cases involving, for 
example, rules for consumer contracts, challenges to regulations 
ensuring fair pay and labor standards, attempts by consumers to hold 
companies accountable for product safety and much, much more. Because 
the Supreme Court's decisions set precedents followed by every Federal 
district court across the Nation--hundreds of district courts--these 
rulings have an impact beyond just the particular case and the 
particular parties or the litigants in that case, in that district, or 
in that Supreme Court case.
  The tilt toward corporate interests at the expense of everyday 
Americans is not confined to the Supreme Court. I have had serious 
concerns about many of the judicial nominees put forward by the Trump 
administration, particularly those nominated to sit on the circuit 
courts, the highest appellate court in the land other than the Supreme 
Court. In essence, these circuit courts, which sometimes cover more 
than one State, are effectively the highest court in the land for the 
vast majority of cases that are not heard by the Supreme Court. The 
Supreme Court may take only a few cases a year, sometimes a very low 
percentage, or less than 5 percent in most years.
  The President has plucked many of these nominees for the circuit 
courts from a list compiled by the Federalist Society and the Heritage 
Foundation, two substantial conservative organizations. I don't want 
the Supreme Court chosen by the Federalist Society and the Heritage 
Foundation. I certainly don't want circuit court judges chosen, 
handpicked, and designated ahead of time who only have been selected 
from this list. That is apparently what happened in the midst of the 
campaign. They gave the Republican nominee a list and said: That is 
your list. You choose from them only. It wasn't a suggested list. It 
was a directive.
  I think I am joined by a lot of people across the country in my 
concern when groups like that have veto power over who sits on the 
Supreme Court or who has veto power over those who sit on Federal 
courts.
  Like several of the conservative Justices on the Supreme Court, many 
of these nominees on this list from the Federalist Society and the 
Heritage Foundation have a corporate philosophy, a philosophy that 
ignores the realities faced by many Americans, the realities faced by 
many workers across our country.
  The records of these nominees indicate that this problem will only be 
exacerbated and workers and their families will continue to have the 
deck stacked against them in the real world, not the world of briefs 
and the world of Supreme Court juris prudence and the world of 
arguments in front of the Supreme Court. But in the real world, the 
decks will be stacked against them--in the real world of making ends 
meet in a family, in the struggles that people have every day, and in 
the real world of working every day for long hours and sometimes in not 
the best working conditions and up against very powerful forces.
  The fundamental promise of our court system is this principle of 
justice I talked about earlier--the principle that everyone should have 
a fair shot at justice, all the time, in every case, without exception, 
in every court, in every year, in every era. That is what equal justice 
under the law means, and when that doesn't happen, when someone is 
denied equal justice under the law even one time, of course, our system 
hasn't worked well.
  When you see the numbers that I cited earlier, that the Chamber of 
Commerce has a success rate of 70 percent, I am not sure we can say 
that equal justice under the law--that principle--has been adhered to. 
When that happens, of course, what Saint Augustine reminded us hundreds 
of year ago--that without justice, what are kingdoms but a great band 
of robbers--people are robbed of justice in maybe one case. 
Unfortunately we know from the record that it is a lot more than one 
case. But one is too many if you believe in equal justice under law.
  So I have serious concerns that this basic promise--the ultimate 
promise of justice that was enshrined in our Constitution by our 
Founders and was brought forward by the Judiciary Act of 1789 and which 
has continued to this present day--of equal justice under law could be 
in jeopardy. Some would say that it is in jeopardy already as this 
administration puts its stamp on the judiciary.
  We must demand that the judiciary live up to the principles of equal 
justice under the law for all the people in all the cases all the time.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Strange). The Senator from Vermont.

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