[Congressional Record Volume 168, Number 75 (Thursday, May 5, 2022)]
[Senate]
[Pages S2348-S2349]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. CORNYN. Mr. President, I know we are used to having a lot going 
on here in Washington, DC, but this week seems like we have been hit by 
a whirlwind of activity--a war in Europe, COVID-19 still lingering in 
parts of the world, and then the Supreme Court found itself the victim 
of an unauthorized leak of a draft opinion, which has created a lot of 
furor and anxiety and misinformation.
  One of the things that it has demonstrated is the need to protect the 
independence of the Court.
  Justice Antonin Scalia used to say that you can read the constitution 
and bill of rights of a lot of countries around the world, and they 
look great on paper. He mentioned that of the old Soviet Union, for 
example. But he said they are just words on paper without an 
independent judiciary to enforce them, and he was right.
  Whoever leaked this draft document obviously intended to create a lot 
of public pressure--indeed, coercion--on the sitting Justices to either 
change their minds or to somehow garner a political issue that they 
would be able to use to divert the American people's attention from 
things like inflation, crime, the border, and the challenges to our 
national security and world peace.
  We have to get to the bottom of this, and I am confident that Chief 
Justice Roberts will pursue that until the person who leaked it is 
identified and held accountable.
  But this spotlight on the Court, along with the reaction--the public 
reaction that we have seen has raised another important issue, and that 
is the physical safety and security of the Justices themselves and 
their families.
  In our increasingly polarized climate, the Justices have been 
villainized and subjected to violent threats. People have even 
published their home addresses so they can show up and protest on their 
home, on their property, on their lawns.
  This decision, which is actually a nondecision because the Supreme 
Court hasn't handed down its decision--but the leaker has accomplished 
his or her goal, I suppose, by creating this hostile environment for 
the Justices and their families.
  But, unfortunately, there are even people in this Chamber who have 
contributed to that environment.
  In 2019, the Democratic leader went to the Supreme Court steps and 
threatened two Supreme Court Justices by name. He said:

       You have released the whirlwind--

  By the way, this was the day that the abortion case was argued in the 
Supreme Court.
  The senior Senator from New York, the majority leader, 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.

  And he named Justice Gorsuch and Justice Kavanaugh by name.
  Now, to have the senior Democrat and Senate majority leader from this 
Chamber lobbing threats at sitting Justices on the Supreme Court if 
they did not rule in a way he wished is dangerous.
  We have wondered before about the impact of some of the irresponsible 
rhetoric that occasionally occurs around here on vulnerable minds and 
people who might be tempted to act based on that incitement, based on 
that rhetoric. But to have this come from the majority leader himself 
is just irresponsible.
  This is the branch of government, which is supposed to be the adults 
in the room, to operate in a way that is respectful, even with our 
differences, and the Supreme Court is the branch

[[Page S2349]]

that is meant to operate free from public or political pressure.
  As Chief Justice Roberts said at the time: ``Justices know that 
criticism comes with the territory.'' It is a free country. People can 
express themselves within limits. ``But threatening statements,'' he 
said, ``of this sort from the highest levels of government are not only 
inappropriate, they are dangerous,'' he said. Well, Chief Justice 
Roberts is right, and subsequent events have shown that threats against 
the Justices aren't going away and are becoming even more intense.

  We need to take steps to improve the protection of the Justices and 
their family against potential violence, and it can't wait until 
something bad happens. Some political activists have already announced 
their intentions to go to the private homes of the Justices. This is an 
appalling violation of their personal privacy. It puts them and their 
families at risk. We currently have two Justices with school-aged 
children. Once Judge Jackson joins the Court when Justice Breyer steps 
down, there will be three.
  The Chief Justice has asked Congress to take appropriate action to 
increase protection for the physical safety of the Justices and their 
families, and we need to act and act with urgency.
  Senator Coons, our friend from Delaware, a Democrat, and I are 
introducing a bill, a bipartisan bill, obviously, called the Supreme 
Court Police Parity Act to strengthen security protection for the 
Justices and their families. This will ensure the Justices receive the 
same protection and resources that article I and article II officers 
and their families enjoy. For our present purposes, that means they 
will be given the same authority that the Capitol Police already have 
here on Capitol Hill.
  I appreciate our friend Senator Coons working with me on this 
important legislation, and I hope the entire Senate will vote on it 
soon.
  As far as the larger debate about the draft document that was 
released, it is important to remember we don't actually know what the 
Supreme Court is going to decide until it actually does decide. The 
Justices are still working through the deliberative process, and our 
respect for the independence of the Court requires that we let it 
proceed without interference.
  While tensions and emotions may be high, it is important to note that 
overruling earlier Supreme Court decisions is nothing new. I looked 
back and realized it was 1789 when the Supreme Court reversed its first 
prior decision. Since that time, there have been 232 instances where an 
earlier Supreme Court decision was overturned. And, I must say, thank 
goodness the Court is willing, under some limited circumstances, to 
revisit its earlier decisions.
  The Court's decisions overruling earlier precedents in some cases has 
fundamentally altered major aspects of our society. Without question 
one of the most notable was Brown v. Board of Education. Now, Brown v. 
Board of Education was a landmark ruling overruling a case called 
Plessy v. Ferguson, which established a shameful ``separate but equal'' 
doctrine between Blacks and Whites in public transportation and public 
schools. Brown said that is fundamentally discriminatory and will not 
stand because it doesn't meet the constitutional standards. But it is 
tough today to imagine what our country would look like had the Supreme 
Court not reached its decision in Brown nearly 70 years ago. 
Classrooms, restrooms, water fountains, and even healthcare facilities 
would be designated by race. I am confident that I can speak for 
everyone in this Chamber when I say thank goodness the Court overturned 
Plessy v. Ferguson and reached the ruling that it did in Brown v. Board 
of Education.
  There are more modern examples where the Court overruled precedent, 
like Lawrence v. Texas was overruled in 2003 by the precedent 
established by Bowers v. Hardwick, which had made it a crime to be 
engaged in same-sex conduct. So without a doubt, the Court's decision 
to overturn its precedents has altered our society, and I suggest it 
has changed our society for the better in many of those instances.
  Now, I realize that given our political and ideological preferences, 
we might like or dislike the decision that the Court ultimately makes, 
but former Supreme Court Justice Robert Jackson said years ago that the 
Supreme Court is not final because it is right; it is right, he said, 
because it is final.
  But there is no such thing as an inviolable decision or permanent 
decision by the Supreme Court, and again I say thank goodness. If prior 
decisions were set in stone, we would still be subject to egregious, 
shameful policies of the past like ``separate but equal.'' But the 
Supreme Court should always try to correct previously decided erroneous 
decisions, and they have criteria under the doctrine known as stare 
decisis for the circumstances under which they will revisit that 
precedent. The Court understands that they can't willy-nilly overrule 
earlier decisions, and there is a very elaborate and exacting process 
and evaluation of analysis by which they do so.
  But I believe it is our responsibility here in the Senate not to be 
part of the mob. Cooler heads must prevail. And that means us. It 
starts with us. We have to stand for the independence of the Court even 
when they render decisions we don't like. That is the only way to 
preserve the crown jewels of our form of government, which is the 
independent judiciary. The High Court cannot be subjected to pressure 
campaigns by anyone--elected officials, political activists, or anyone 
else.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.