[Congressional Record Volume 168, Number 74 (Wednesday, May 4, 2022)]
[Senate]
[Pages S2303-S2305]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. LEE. Mr. President, Justice Alito's draft opinion in Dobbs v. 
Jackson Women's Health is a masterpiece of jurisprudence, and it is a 
long overdue victory for the preborn. It is also a vindication of 
nearly 50 years of tireless efforts by the pro-life movement, the 
conservative legal movement, by textualists and originalists, and by 
President Trump's recent judicial appointments.
  I am proud to say that this decision vindicates the efforts of people 
like my late father, who wrote an amicus brief in City of Akron v. 
Akron Center for Reproductive Health.
  Incidentally, it was in that context when I first had an encounter 
with individuals on the opposite side of this issue. I was 11 years old 
when my father submitted that amicus brief while serving as President 
Reagan's Solicitor General.
  One morning, a busload of pro-abortion rights protesters showed up 
outside of our home. My parents and my siblings were out running 
errands, going about various activities. I found myself alone that 
morning. I went outside to talk to the people who had shown up in our 
quiet suburban neighborhood in a Greyhound-size bus carrying signs and 
shouting slogans of one sort or another.
  I introduced myself to the woman who appeared to be in charge. Her 
first words startled me. She said: Well, hello, little boy. We are not 
here to hurt you.
  I thought that was strange. It ought to go without saying. It is a 
little alarming when that is the first thing someone says to you. I 
asked her what she was doing. She told me that they were there because 
they disagreed with some things that my father had submitted to the 
Supreme Court of the United States in that amicus brief to which I 
referred.
  I then asked the question: Why do you have to do it on my lawn? She 
responded in a way that I found curious. She said: Well, we are trying 
very hard not to step on your lawn. We are actually staying on the 
sidewalk.
  I didn't yet understand the difference between an easement and a 
walkway and whether they had entered onto the curtilage of our home. 
All I knew was that it seemed like a strange place to be doing this, in 
front of a private residence, a home where a public official lived and 
slept and raised his children.
  I think about the tireless efforts of people like my late father to 
stand up for the rights of unborn human beings and for the injustice 
brought about by Roe v. Wade--a 1973 decision by the Supreme Court that 
stripped power away from the American people, stripped their 
opportunity to make decisions regarding abortion at the appropriate 
level of government, to have those decisions made by their own elected 
lawmakers rather than by unelected, unaccountable Judges who had 
arrogated to themselves the almost exclusive prerogative to decide how, 
when, whether, to what extent abortions may be regulated.
  What lies before the Supreme Court is the test of weathering the 
storm of political opinion. The line has been drawn, and Roe v. Wade 
appears to be on the verge of being overturned. Should this draft 
opinion become the official holding of the Court, Americans will, once 
again, have the opportunity to debate and discuss these issues with the 
American people each deciding, within their respective State, what 
terms and conditions ought to apply, what restrictions ought to be 
imposed to protect human life.
  This should give us all hope that America is not doomed to decline. 
All

[[Page S2304]]

it takes is persistence, even in the face of daunting odds and decades 
of setbacks by those who love God and love our country. For once, good 
men and women did not do nothing, and this evil will triumph no more.
  I was thinking recently about a monument that was placed on the Mall 
upon the hill where the Washington Monument stands. A few months ago, 
people placed white flags, each memorializing those who had died with 
COVID-19. I believe at the time there were 6 or 700,000 people in 
America who had died with this illness, and so there were 6 or 700,000 
little white flags, each standing only a few inches tall on that hill 
where the Washington Monument stands. From a distance, it looked like a 
snowstorm had hit Washington, DC. It hadn't. It was actually quite 
beautiful.
  I started thinking, I started wondering: What if a similar memorial 
were placed--if only temporarily, like that one was--honoring, 
memorializing those 63 million babies who had been aborted since Roe v. 
Wade was decided in 1973, taking away from the American people the 
ability to make their own laws in their own States pursuant to 
authority that belongs to the American people and our constitutional 
system of government--63 million babies. A portion of this came out of 
my generation. There are an estimated one-fourth of generation X who 
were never born because they were aborted--63 million. What if we had 
small red flags, each representing one of those babies? It has occurred 
to me that there wouldn't be room enough on that hill to accommodate 
all of those. I seriously wonder whether there would be room enough in 
the entire Mall, between the Capitol Building to the east and the 
Lincoln Memorial to the west, to accommodate all of those red flags. 
And what would that look like? The COVID memorial looked like a 
snowstorm. This sea of red flags would look like something else.

  Now, this moment is not without some sense of loss. When I saw a 
draft Supreme Court opinion that had been leaked to the news media, I 
experienced a wave of emotions. As pleased as I was and as encouraged 
as I am by what appears to be something that will soon become the 
opinion of the Court, I was also deeply upset that an employee of the 
Supreme Court of the United States could betray the trust of the 
Justices.
  I recalled from my own time that I spent at the Supreme Court, the 
time I spent as a law clerk working for Justice Alito, the great 
lengths to which the Court went to protect the internal deliberations 
of the Justices. We drafted opinions on separate computers--``separate 
computers'' meaning we had a computer system that allowed us to handle 
internal correspondence between the chambers, to transfer draft 
opinions between the various chambers.
  That computer system was completely walled off from the outside 
world. It was connected only by a local area network, one that was 
impenetrable from the outside world. If we wanted to do any research, 
any outside correspondence, anything that would require internet 
access, we had to go to a separate computer; we couldn't use that one. 
It was walled off completely, with good reason.
  You see, the Court operates in such a way that its ultimate work 
product in any case will consist of a ruling; and, in fairness to the 
Justices, you have got to make sure that everything is in order; that 
the Justices each have decided exactly how they are going to vote, 
which opinion they are going to join, and what that opinion is going to 
say before they release their opinions. If those go out too early, then 
they are not ready. That does a grave injustice to the litigants and to 
the American people, generally.
  That is why the Court goes to great lengths. It is not that they are 
being secretive about it. The Court is actually quite open and 
transparent. It is a matter of public record what documents they review 
in each case. The oral arguments presented to the Court are, likewise, 
matters of public record. And the documents that they produce that have 
legal operation are also public documents. It is actually a very open 
and transparent process.
  But during the time period between when argument is heard and an 
opinion is rendered, the Court needs to be able to deliberate and 
consider its options confidentially. So that is what this security 
system does. It is there to make sure that opinions, as they are being 
drafted and sent back and forth, don't leak out.
  In many circumstances, the editing of opinions took place on that 
same computer system, with drafts going back and forth; redlined, 
proposed edits between them. In those moments when you did need to 
print them out, you needed a hard copy, you could do so; but there were 
conditions attached to them. There was an understanding that they 
shouldn't leave the building, you can't take them home with you, they 
shouldn't go outside the Court, they probably shouldn't even go outside 
of your particular office. And when you are finished with them, you 
don't just throw it in the wastebasket; you put them in a burn bag.
  Each law clerk has next to his or her desk a tall brown paper bag 
with stripes on it, and at the end of the day someone comes around and 
collects the contents of those burn bags. And they shred them. My 
understanding is that they shred them a couple times so that the 
documents are reduced not just to long, thin ribbons of paper that have 
been cut apart but they have been cut multiple times so that it is a 
fine mist of confetti.
  It is also my understanding and was at the time that before any of 
that even left the building, they would take it to an incinerator--that 
confetti--and they would burn it and they would grind it up into an 
ashy pulp, perhaps put some water in there, creating a slurry, so that 
no one could look at what was previously a draft opinion and discern 
what is going to happen.
  You see, lives are at stake. Power is at stake. Sometimes an enormous 
amount of money is at stake. All these things matter, and the Court 
wants to make sure that the opinions go out only when they are ready.
  Every day was filled with a sense of seriousness and of duty, a 
seriousness felt by everyone, even and especially when there was 
disagreement. The ability to deliberate and discuss these complicated 
legal principles through the process of writing, editing, and sharing 
opinions with their colleagues is how the Justices are able to distill 
legal principles and arrive at proper legal conclusions and to do so, 
moreover, in a way that is respectful of the litigants and of each 
member of the Court. That is why their work is guarded from public 
scrutiny at this stage and why a breach of confidentiality such as what 
we have witnessed this week is so damaging.
  And, to be clear, this is unprecedented. I can't think of another 
instance of this happening over the Court's entire history--certainly 
in modern history. I can't think of another instance in all of history 
in which something like this has happened, as the Court and its 
personnel have had a long history and a proud tradition of taking great 
care in these matters.
  Yet while I am convinced that this leak may have been an attempt to 
intimidate the Justices and the majority, perhaps an effort to get them 
to change their position, I am also confident that this attempt will 
not succeed. And it must not succeed. Chief Justice Roberts said this 
very thing in his official statement, and he announced that an 
investigation into the leak will take place. I trust him and the other 
Justices and the Office of the Marshal at the Supreme Court to steer 
the Court through this storm and to oversee this investigation.

  The overwhelming feelings that I have today really are of joy--joy in 
the probable outcome of this case--and pride in being a former law 
clerk to Justice Alito, for whom I clerked twice: once when he was 
serving on the U.S. Court of Appeals for the Third Circuit and again 
while he was on the Supreme Court.
  The draft opinion overturns Roe v. Wade and Planned Parenthood v. 
Casey, stating that they ``must be overruled and the authority to 
regulate abortion must be returned to the people and their elected 
representatives,'' noting correctly that the Constitution neither 
explicitly nor implicitly protects a right to abortion.
  Every human life, born and unborn, has immeasurable dignity and 
worth, each unrepeatable and infinitely valuable. The lives of an 
unborn baby and her mother and her father matter, and

[[Page S2305]]

the Court overturning prior precedents such as Roe and Casey is not 
unprecedented--not at all. In fact, some of the Court's most 
consequential and lauded decisions overturned prior rulings.
  Justice Alito compared the damage wrought by Roe to that of the 
``separate but equal'' doctrine created in Plessy v. Ferguson. Now, 
thankfully, the Supreme Court of the United States in Brown v. Board of 
Education overturned Plessy, putting an end to racially segregated 
schools, just as it appears now poised to overturn the erroneous 
decisions in Roe and in Casey.
  The opinion is exceptionally well reasoned, thorough, and grounded in 
the Constitution. It also means that in States across our country, 
including in my home State of Utah, hundreds of thousands of unborn 
children--children who could not be protected by State law due to 
restrictions placed on them by an invented, nonexistent constitutional 
doctrine created out of whole cloth in Roe and in Casey--now have some 
chance at being protected, depending, of course, on which decision 
makers in which States make which decisions regarding the protection of 
human life.
  As Americans, we must not--we can never forget what is at stake. If 
this majority decision stands, those who recognize the sanctity of 
human life--like myself and like a majority of Utahns--will have much 
to celebrate, but we must also recognize that this is not the end of 
this chapter in American history. The efforts of the last half century 
have not been done just simply to overturn Roe.
  You see, getting to this point, the point that the Court has 
apparently reached, means that this discussion can finally begin. It is 
a discussion that has been closed out. Debatable matters have been 
rendered beyond debate. This, of course, is the vision of a post-Roe 
America. This is why overturning Roe matters. What happens next with 
regard to abortion will be determined by the people of the 50 States 
through their elected leaders, as our constitutional command of 
federalism demands.
  Now, some States, like Utah, already have laws in place to protect 
the most vulnerable among us the moment that Roe and Casey are 
overturned. I hope and pray that many innocent lives will be saved, not 
just in my State but all throughout our country. And I pray for all 
nine Justices' safety and for our country.
  We all know and we have to remember that the laws adopted in one 
State will be different than the laws adopted in another. Part of 
living in a pluralistic society, part of living in our constitutional 
Republic requires us to accept the idea that people have different 
opinions; they have different views. Regional differences appear from 
one State to another. I predict that the laws of Utah with regard to 
the protection of preborn human life may differ considerably from those 
of Vermont; that the laws of Massachusetts may differ in meaningful 
ways from those in Mississippi.
  Overturning Roe v. Wade and Casey v. Planned Parenthood does not do 
almost any of the things that are recited in the parade of horribles 
that those who are condemning this decision already have recited. Among 
the more frequent and perplexing arguments is that the overturning of 
Roe v. Wade and Casey v. Planned Parenthood somehow signals or will 
result in the demise of democracy.
  Nothing could be further from the truth. In fact, it is difficult to 
understand how anyone could even make this argument with a straight 
face. I don't mean here--not referring to their underlying position; I 
am referring to the specific argument that this somehow represents a 
threat to democracy. Quite the opposite is true.
  By overturning Roe v. Wade and Casey v. Planned Parenthood, what the 
Supreme Court will be doing, the very thing it will be allowing is for 
the democratic process to unfold, for people to make laws as they deem 
fit in their respective States.
  You see, all powers not granted by the Constitution to the Federal 
Government and not prohibited by the Constitution to the States remain 
to be made with the States or with the people themselves. That is what 
this does. So if we want to talk about democratic principles, this will 
further democratic principles. It will advance republican democracy, 
not undermine it.
  Another argument that has been made that I find equally perplexing is 
the suggestion that this somehow amounts to zealots on the Supreme 
Court of the United States dictating to women across America decisions 
regarding abortion. That is also not true. There is nothing about 
overturning Roe v. Wade and Casey v. Planned Parenthood that requires 
that anyone do anything beyond the fact that it is lifting previously 
recognized but nonexistent impediments to State governments to protect 
unborn human life.
  To those who have raised these concerns, to those who disagree with 
my views on the sanctity of unborn human life--and I recognize that 
there are those who do; many of them, in fact--I would direct them to 
their respective State-elected officials, specifically their State 
legislatures. That is where this decision is to be made. It is not to 
be made by the Supreme Court of the United States. They can't 
criminalize anything. It is not within their power. They are just 
deciding who gets to decide what. Different States are going to decide 
this differently, but that is part of the entire constitutional design.
  What Justice Alito wrote in this draft opinion is something that I 
hope will stand. It is absolutely right. It is unassailable from a 
constitutional standpoint, and it is absolutely essential to restore 
the American people to that which is rightfully theirs.
  I remain deeply troubled by those who appear, whether by leaking this 
opinion, characterizing it in ways that are unfair, threatening to pack 
the Supreme Court of the United States, talking about passing 
legislation that would increase the number of seats on the Supreme 
Court--these are all efforts designed to degrade, to denigrate and 
delegitimize the Supreme Court of the United States.
  To those who have any inclination to do such a thing, I would say 
this: Roe v. Wade has stood in place nearly my entire life. Since I was 
old enough to understand it throughout my entire life, I have regarded 
it as a really bad decision, a very wrong decision.
  Notwithstanding that, I have always regarded and still regard the 
Supreme Court of the United States, despite its flaws--flaws stemming 
from the fact that it is run by fallible, mortal human beings who 
sometimes make mistakes--despite its flaws, it is the greatest tribunal 
of its kind anywhere in the world. We would not want to substitute it 
because there is no better court of last resort anywhere in the world, 
even with its flaws. We must not risk what would come if we continue to 
delegitimize the Court.
  In the meantime, I am grateful that the Court appears finally to be 
on the verge of correcting this grave injustice, and I look forward to 
the debates and the discussions that will occur once and for all by the 
people's elected representatives. These decisions will now be able to 
be made by the people's elected lawmakers and not by unelected, 
unaccountable jurists who lack authority to make that decision on 
behalf of all Americans.
  I continue to pray for the Court and for our country. Heaven knows 
our Republic needs it.
  The PRESIDING OFFICER. The Senator from Illinois.