[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
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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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