[Congressional Record Volume 168, Number 114 (Tuesday, July 12, 2022)]
[Senate]
[Pages S3234-S3235]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. DURBIN. Mr. President, last month the Supreme Court completed one 
of its most consequential and, in many ways, disastrous terms in 
American history, issuing a flurry of decisions that have upended our 
constitutional landscape.
  In the scope of just a few weeks, the Supreme Court's radical new 
supermajority trampled over decades of longstanding precedent and 
usurped the power that has been traditionally left to Congress, State 
legislatures, and even individual Americans.
  In fact, for the first time in the history of the United States of 
America, the Supreme Court revoked a constitutional right: the right to 
reproductive healthcare.
  What we have seen from this Supreme Court is not guided by any 
coherent philosophy. It is judicial activism, plain and simple. The 
Court's radical majority is cherry-picking its way across text and 
history to impose their own ideological agenda on the American people, 
and, in so doing, the majority is not only damaging the Court's 
constitutional integrity. They are undermining the health and safety of 
the American people.
  Let me explain, starting with one ruling that will severely limit the 
Government's ability to address what could be the greatest challenge of 
our time--the climate crisis. The case was West Virginia v. the EPA. 
The conservative majority on the Court misconstrued the law passed by 
Congress to side with the fossil fuel industry over the health of the 
American people.
  When Congress enacted the Clean Air Act more than a half century ago, 
it charged the Environmental Protection Agency with protecting our air 
from harmful pollution, including greenhouse gases, which are causing 
catastrophic and irreversible damage to our planet. As Justice Kagan 
emphasized in her dissent, if the current rate of emissions continues, 
children born this year could live to see parts of the eastern seaboard 
of the United States swallowed by the ocean. Rising waters, scorching 
heat, and other severe weather events can force mass migration, civil 
unrest, and, in some parts of the world, even failure of state 
government. And, of course, Black, Brown, indigenous, and other 
communities bear the largest burden of environmental disaster.
  With the Clean Air Act, Congress rightfully recognized that 
scientists--not politicians or judges--should be the authority on 
deciding the best methods to reduce emissions from powerplants. It was 
under that authority that in 2014 the EPA proposed the Clean Power 
Plan. That plan would have markedly reduced greenhouse gas emissions, 
but it never went into effect.
  That is important because article III of the Constitution requires 
that there be an actual case in controversy in order for the Supreme 
Court to issue a ruling. Because the Clean Power Plan never went into 
effect, there was no case or controversy to refer to, but the Supreme 
Court still went out of its way to reject the plan and toss it aside in 
West Virginia v. EPA. Worse yet, the Court claimed it had the authority 
to do so by relying on something the conservative majority calls ``the 
major questions doctrine.''
  Listen to what Justice Kagan said about this in her dissent:

       The current Court is textualist only when being so suits 
     it. When that method would frustrate broader goals, special 
     canons like the ``major questions doctrine'' magically appear 
     as get-out-of-text-free cards.

  The ``major questions doctrine'' might sound like a legal word salad, 
but it will have serious consequences on America. In short, the radical 
majority on the Court declared it has the authority to veto any Federal 
regulation it doesn't care for; that is, unless Congress spells out 
every single detail decades in advance.
  Here is the deal. As good as we are in the Senate and the House, 
lawmakers are not clairvoyant. We write laws like the Clean Air Act to 
address evolving unforeseen challenges like the climate crisis, and we 
grant Agencies the power to create regulations to address these 
challenges based on their singular expertise.
  In West Virginia v. EPA, the Supreme Court's radical majority decided 
that their own ideological goals on the Court were more important than 
the expertise of the world's top scientists. And with this ruling, 
the Court has made it clear that they are coming after public Agencies 
responsible for protecting our public health. They

[[Page S3235]]

want to weaken the government's ability to work upon behalf of the 
American people.

  Just days before issuing a decision on West Virginia v. EPA, the 
Court issued another ideologically driven ruling in New York State 
Rifle & Pistol Association v. Bruen. With this decision, the Court 
struck down a New York gun safety law that had been on the books for 
more than a century. That law placed limits on who is allowed to carry 
a concealed handgun in public. As a result of the law being struck 
down, it is all but certain that we will see more guns on the streets 
of America at a time when gun violence has become so bad that the 
leading cause of death among children in America would be guns.
  The Supreme Court's decision to wipe away a century-old gun safety 
law was troubling enough, but even worse is the new test it laid out 
for considering constitutional challenges to other gun laws. Justice 
Clarence Thomas' majority opinion rejected the legal test that lower 
courts had applied after the legendary Heller case, which sensibly 
combined historic analysis with present-day public safety 
considerations. Instead, under Clarence Thomas's reasoning, the 
majority claims that the only test for whether a gun law is 
constitutional is historical analysis; that is, whether the current law 
has a historical analogue.
  There is a problem with that in two respects. First, it invites 
judicial cherry-picking of historical sources, which is exactly what 
the Clarence Thomas majority did in striking down the New York law. 
Second, it ignores modern public safety threats posed by firearms which 
are nothing like the guns that the Framers of the Constitution had in 
their day.
  Think about it. The gun that was fired in the Highland Park Fourth of 
July parade crowd discharged 90 rounds in just a matter of seconds. No 
musket in the time of the Founding Fathers was ever used to fire 90 
rounds per minute into a crowd watching a Fourth of July parade. There 
is just no analogue. The Bruen decision was not a triumph of 
originalism. It was a classic example of runaway judicial activism in 
furtherance of the far-right ideological agenda, and we have to live in 
the America that it leaves.
  That is not the only ruling in the past term that made America less 
safe. Earlier today, my Judiciary Committee heard a hearing on the 
Court's decision in Dobbs v. Jackson Women's Health Organization which 
revoked the constitutional right to reproductive healthcare for every 
woman in America.
  This decision is one of the most irresponsible rulings in American 
history. By overturning Roe v. Wade, the majority not only violated 
five decades of longstanding precedent; they created a healthcare 
crisis across the country.
  Do you realize that every one of these Supreme Court nominees came 
before this Judiciary Committee and made it clear that they would 
respect this precedent? And now look at what has happened. Whatever 
your thoughts on Roe may be, the fact is that it put a profound and 
personal decision exactly where it should be--in the hands of an 
individual. Now that the right has been ripped from the American people 
and handed over to the Government, your constitutional freedoms depend 
on what State you live in. Your ZIP Code will decide your 
constitutional right.
  You know, for decades, anti-choice activists claimed that overturning 
Roe would finally settle the controversy surrounding abortion. Instead, 
this Supreme Court has invited chaos. Pregnant women in America are 
scrambling at this very moment trying to figure out if they can make it 
to the nearest clinic to receive lifesaving care as they experience 
complications during pregnancy. And once again, like the Bruen decision 
on firearms, the Dobbs decision on abortion is littered with inaccurate 
historical analysis.
  Justice Alito claims that abortion is not constitutionally protected 
because it is not ``deeply rooted in the Nation's history and 
tradition.''

  I am not sure what history his law clerks have been reading. As the 
dissenters in the Dobbs case said:

       [E]mbarrassingly for the majority--early law in fact does 
     provide some support for abortion rights. Common-law 
     authorities did not treat abortion as a crime before 
     ``quickening''--the point when the fetus moved in the womb. 
     And early American law followed the common-law rule. So the 
     criminal law of that time might be taken as roughly consonant 
     with Roe's and Casey's different treatment of early and late 
     abortions.

  Just look at one of our Founding Fathers, Benjamin Franklin, who 
actually published a textbook that included an at-home abortion recipe.
  So the Dobbs decision is not based on any originalist interpretation 
of the Constitution or any precedent. It is an ideologically motivated 
outcome in search of a legal rationale.
  This assault on our fundamental freedoms won't end there. The Supreme 
Court has already signaled they are just getting started. During 
today's hearing on the overturning of Roe v. Wade, we discussed Justice 
Clarence Thomas' concurring opinion in Dobbs, in which he argues that 
the constitutional right to privacy is a fiction.
  In that opinion, he declares that the Court should ``eliminate'' the 
line of cases guaranteeing the constitutional rights to birth control, 
marriage equality, and consensual relations between LGBTQ people. There 
is good reason to take this threat seriously.
  Based on the cases the Court has agreed to hear in its next term, 
which begins in October, it is clear that the majority is once again 
seeking opportunities to impose its far-right agenda on the American 
people.
  The Court is considering one case that could allow individuals and 
businesses to openly discriminate against LGBTQ people. Another case 
will revisit the question of affirmative action in higher education, 
and, most concerning, this Court will consider a case that could 
threaten American democracy as we know it. They will decide whether a 
State legislature can disregard the will of the voters in their State 
to appoint a slate of electors who support the losing Presidential 
candidate. The Presiding Officer knows this issue well from the State 
of Michigan's experience just a few months ago.
  There is a reason why a record number of Americans say they have lost 
faith in the Supreme Court based on what happened in this term that 
just concluded. And now they are living in fear that their most 
cherished rights--basic human rights in America--are on the 
conservative chopping block.
  The tragic irony is that it was Chief Justice Roberts who once said 
that ``justices . . . are like umpires. . . . They make sure everybody 
plays by the rules, but it is a limited role.''
  I remember that quote, as I was sitting in the Judiciary Committee 
when he made it, and I thought the limitation that he suggested for the 
Supreme Court was an indication of his moderation.
  The Court that he has joined, in many of these opinions, is not a 
Court of limited or moderate means. I wish I could say that that, in 
fact, were true today. It is not. This radical majority is not 
comprised of umpires calling balls and strikes. They are, in fact, 
judicial activists--unelected judges--who are actively undermining the 
rule of law in America, and there is more to come.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.

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