[Congressional Record Volume 168, Number 74 (Wednesday, May 4, 2022)]
[Senate]
[Pages S2307-S2308]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. Supreme Court
Mr. CORNYN. Mr. President, just a couple of days ago, we witnessed an
unprecedented attack on the independence and integrity of the U.S.
Supreme Court, a third coequal branch of government, when some
reporters got their hands on a nearly 3-month-old draft of an opinion,
setting off a political firestorm, creating a lot of confusion, more
than a little hysteria. And all of which is, frankly, beside the point
because the Court actually hasn't decided anything.
But this was a stunning breach of confidentiality for an institution
that relies on a private, confidential deliberative process.
The Supreme Court was designed to operate, as is our judiciary, free
of political and other outside influence and interference. That is why
Justices are not elected; they are nominated and confirmed to serve
life terms. That is why they don't have term limits. That is why you
can't reduce their salary while they are in office, to make sure that
politics and outside opinions have nothing to do with the way they do
their job because, of course, their job is a limited but important job
of saying what the law is, not making it up, not being a policy maker,
but saying what the law is.
It is absolutely critical to our form of government and to our
separated powers and our three branches of government that the Supreme
Court be protected from pressure campaigns from anyone--politicians,
political activists. Anyone. But that is exactly what is happening
right now, and many of our colleagues on the other side of the aisle
are fanning the flames. And they know that this is not a final opinion,
but they see a political opportunity to fan the flames of hysteria and
mislead the American people about exactly what this all means and what
the consequences are.
For example, in the wake of this news, the Democratic leader of the
Senate and the Speaker of the House released a statement--an
unconscionable statement, in my view. They called it an abomination,
one of the worst and most damaging decisions in modern history and one
that defiled the Supreme Court's reputation.
That is what they say about a nondecision, a nonjudgment, about a
leaked, 3-month-old draft.
We have no idea how the Court will ultimately decide the case, but
this was a political opportunity that the Speaker and the majority
leader could not resist.
Frankly, I think it is because they would like to change the subject.
The American people's concerns, if you ask them--as public opinion
pollsters have--what they are concerned about, they said they are
concerned about inflation, they are concerned about crime, they are
concerned about the border, they are concerned about the war, the
Russian invasion of Ukraine. But this is a grand opportunity to change
the subject and to mislead the American people.
For some reason, the Senate majority leader, Senator Schumer, and
Speaker Pelosi did not criticize the person who actually leaked the
opinion, the person who committed a frontal assault on the independence
of our judiciary, the Supreme Court.
One of the most powerful institutions in our country experiences an
unprecedented breach of confidentiality, and what do our Democratic
colleagues, the Speaker and the majority leader, do? They attack the
Justices. They attack the Court. They don't attack the leaker, the
person who committed this egregious breach of confidentiality.
Nowhere in their joint statement did they even mention the leak or
leaker, or reaffirm the importance of an independent judiciary.
No, they took the opportunity to slam the Justices, who have not yet
decided the case.
Unfortunately, this is nothing new. In 2019, the Democratic leader
went to the Supreme Court steps and threatened two Supreme Court
Justices by name if they did not rule in a certain way.
He said:
You have released the whirlwind, and you will pay the
price. You won't know what hit you if you go forward with
these awful decisions.
That is our colleague, the senior Senator from New York, the majority
leader of the Senate. He threatened two sitting Justices with
retribution should they rule in a way he disagreed with.
The top Senate Democrat lobbing threats at Supreme Court Justices is
a dangerous, dangerous model for the American people. This is the
branch of government that is supposed to be kept free from those
pressures and those sorts of threats, that kind of intimidation, or at
least attempts at intimidation.
But, here again, the Senator from New York and the Speaker of the
House, they know that, but they did it anyway.
It doesn't matter what case is before the Supreme Court or what
ruling is ultimately handed down, leaders of Congress, some of the
highest elected officials in the U.S. Government, should be a better
example and defend the important principle of judicial independence.
Justice Scalia, in one of his speeches that I read a few years back,
talked about what is unique about our system of government, and he said
it is the independence of the judiciary, which are the crown jewels. He
said, you read the Constitution of the old Soviet Union or any one of a
number of other countries, they may have a fine written document that
pledges allegiance to certain high-minded values, many of which are
contained in our Constitution, but they are just words on a paper.
He said what is different in the United States of America is the
independence of the judiciary, who will call balls and strikes and who
will ultimately decide some of the most contentious and disputed issues
in our country based on the Constitution and laws of the United States,
not because
[[Page S2308]]
they took a public opinion poll to see what was more popular or they
were threatened with retribution by some politician.
Unfortunately, our Democratic colleagues and, in particular, their
leaders have taken a dangerous approach, and they are not just taking
aim at individual Justices; they want to undermine the entire
institution of the independent judiciary, particularly the Supreme
Court.
A few years ago, five of our colleagues on the Democratic side,
including the current chairman of the Senate Judiciary Committee, filed
an amicus brief--a friend of the court brief--in a case involving gun
rights. These Senators made a not-so-subtle threat that unless the
Court ruled in a particular way, the entire institution would be, in
their words, ``restructured.'' That is nothing more, nothing less than
a simple effort to coerce the Justices into deciding a case in a
particular way; to threaten them that unless you go our way, the Court
will be restructured.
Well, we know that those weren't just idle words, given some of the
threats to pack the Court by adding additional Justices to the Court.
We heard that threat of Court packing many times. That was one of the
agenda items should our Democratic colleagues eliminate the filibuster,
the requirement of 60 votes before you close off debate in the
Senate. They said they were going to pack the Court. Many of the
presidential hopefuls embraced that idea in 2020, and the latest news
has it that a number of Democrats are bringing this idea back to center
stage. Disagree with what you think the Court might ultimately decide,
and we are going to restructure it. We are going to pack it until we
get the result that we want. Kiss an independent judiciary goodbye--the
crown jewels of our system of government.
Earlier this week, the junior Senator from Massachusetts called the
Supreme Court's current majority ``stolen, illegitimate, and far-
right.'' These are Justices who were confirmed by the U.S. Senate. It
is dangerous and dishonest to suggest that any of their positions are
anything less than consistent with the law and the Constitution.
Our colleague went on to say that the Supreme Court should be
``expanded.'' That is another way of saying they should pack the Court
with like-minded policymakers. Well, whether you talk about expanding
the Court or packing the Court, the result is the same. It is just
another effort to try to politicize this independent branch of
government--this independent judiciary--which, as I said and will say
again, are the crown jewels of our system of government, an independent
judiciary.
Well, even Joe Biden knows that is a boneheaded idea. The reason I
know that and we know that is because that is what he said in 1983. He
called Court packing a ``boneheaded idea.''
Justice Ginsburg was asked about it. She said ``nine seems to be a
good number.'' That was her gentle way of saying that if you start
adding Justices to the Court or restructuring or packing the Court,
basically, you are in pursuit of a political outcome and you undermine
the independence of the judiciary and they are transformed into
something far different than what our Founding Fathers believed it
would be, which is an institution that would decide legal disputes,
whether they be constitutional or otherwise, and would be depended on
by the American people to present fair opportunities for all sides to
be heard and then an outcome that was not tainted by bias or politics
or policymaking.
As Justice Breyer has said, the very authority that the Court has
depends on ``a trust that the court is guided by legal principle, not
politics'' and that these types of changes--packing, restructuring,
whatever you want to call it--he said would erode that trust, undermine
the public's confidence and trust in the Supreme Court.
But as we have seen the last few days since this draft opinion was
leaked in an egregious breach of confidentiality, our friends across
the aisle don't want impartial judges. They don't want an independent
judiciary. They want judges who will deliver a particular outcome in a
case. They want the Court to be an extension of their politics here in
the Senate.
Well, politics has its place, but its place is right here and in the
White House, where the voters get to vote for us or vote against us
every 2 years or 6 years, as the case may be--or 4 years, in the case
of the President.
I understand that our colleagues want a specific ruling on abortion
rights. Tomorrow, it could be Second Amendment rights. The next day, it
might involve the means by which we run our elections. This entire
episode highlights just how far the radicals in the other party are
willing to go to try to get their way. They don't care about the long-
term best interests of the country. They don't care about an
independent judiciary. They are looking for an opportunity to score
political points and distract the American people from what they are
really concerned about, which is their ability to put food on the table
and support their families.
The reason why our Founders designed a Federal Government with three
separate but equal branches is because they thought the checks and
balances that the three branches would impose would be protective of
their liberty. And when one branch goes too far, another branch can be
a check and a balance on that and, ultimately, the Supreme Court could
be the final arbiter on the constitutionality or the legality of what
the other branches are trying to do.
But our colleagues across the aisle--by their irresponsible rhetoric
undermining public confidence in the Court, jeopardizing the
independence of the judiciary--are blurring the lines between the
political process and the judicial branch's responsibility. And why?
For partisan political gain.
An independent judiciary is essential to our democracy. The parties
whose cases are being decided by the Court should never have to worry
about outside influencers or whether politics plays into the decision-
making process.
How would you feel if you had a case before the U.S. Supreme Court
and you knew that your opposing party tried to pressure or coerce or
persuade the judge to arrive at a certain outcome regardless of the law
or facts? Well, that would be the opposite of an impartial tribunal and
independent judiciary; but that is exactly what our Democratic
colleagues are trying to do with the U.S. Supreme Court in this
instance.
Americans have a constitutional right to due process of law and that
precludes any attempt to influence or obstruct an independent judiciary
for making a decision in an individual case. I would like to see more
of our colleagues on the other side of the aisle fight to protect the
integrity and independence of the judiciary. But if they won't, then we
will.
One thing is for certain. As Chief Justice Roberts said, the Court
needs to get to the bottom of how this draft opinion got into the hands
of the press in an unprecedented and egregious breach of confidence.
The Supreme Court Chief Justice Roberts has directed the Marshal of the
Court to investigate the source of this leak and once that happens, the
person responsible will be held accountable. It is a very tight-knit
group of people who have access to these draft opinions.
I have every confidence the Marshal of the Court will find the person
who leaked this opinion to the press, and they will be held accountable
in what will undoubtedly be a life-changing consequence, particularly
if it is a law clerk or someone who is working for the Court. It will
be a career-ending mistake.
But this is, first and foremost, a matter of protecting the integrity
and independence of the judiciary from any force, external or internal,
that seeks to chip away at the Court's independence.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. ERNST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.