[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.