[Congressional Record Volume 168, Number 120 (Wednesday, July 20, 2022)]
[Senate]
[Pages S3530-S3535]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           U.S. SUPREME COURT

  Mr. MERKLEY. Mr. President, on July 4, we celebrated the founding of 
our Nation, as we do every year. But when I woke up on this July 4, I 
had a strange thought, a thought I never had before, the question of, 
What kind of country are we celebrating?
  I have always had immense pride in the founding vision of our Nation, 
in that vision of equality, of opportunity for all, of freedom of 
religion, of equal justice under the law, of equal representation, and, 
most importantly, of government of, by, and for the people.
  Our journey as a nation over nearly 250 years has been a difficult 
journey of moving toward full implementation of this vision. That is an 
inspiring journey--a journey I have been proud to witness, a journey I 
have been proud to be a part of.
  But just days before this year's July 4 celebration, we saw the 
conclusion of the Supreme Court's latest judicial term--a term over 
which the Court displayed a far different vision for America: one with 
devastating repercussions that will reverberate in the lives of 
countless Americans for decades to come.
  For years now--actually, for decades, we have watched a steady, 
relentless effort by rightwing extremists to rig the courts so they can 
transform America and American society as we have known it. Their big 
goal is corporations over people and their second goal is to implement 
conservative cultural policy over individual freedom and liberty.
  Now, with this Court's recent decisions, we are left with an 
inescapable conclusion: The extremists have succeeded. The Court is now 
operating as an unelected super-legislature with a MAGA political 
agenda. Their decisions this term read like planks out of the 
Republican Party platform.
  Here is what the MAGA Court's vision is for our Nation. It is a 
vision that obliterates the right to privacy, giving an overbearing 
Federal Government the power to be in the medical exam room making 
reproductive health decisions for American women, when the only people 
who should be in the exam room, under an ``of and by the people'' 
Republic is the woman, her doctor, and whomever else she chooses to 
invite--her partner, her friend, or her religious adviser.
  This Court's vision is a vision that embraces never-ending gun 
violence, stripping Congress and the States of

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the ability to make commonsense gun safety laws.
  It is a vision of a nation where public schools can impose religion 
on their students. So much for freedom of religion and separation of 
church and State.
  It is a vision of a nation where wrongfully incarcerated Americans 
don't have the right to prove their innocence and can't find justice if 
their Miranda rights were violated. So much for the principle of equal 
justice under law, the very principle carved into stone above the doors 
of the Supreme Court. In fact, if you go out this door and out the 
front steps, you can see those words while standing here on the steps 
of the Senate.
  This Court's vision is of a nation where the Court strips the Federal 
Government of its legally enacted power to regulate fossil carbon and 
fossil methane pollution that is destroying our Nation and our planet.
  It is a vision where the powerful corrupt the integrity of our 
elections with gerrymandering and dark money and measures to prevent 
targeted groups of Americans from voting.
  This vision is a vision for a government by and for the powerful, not 
by and for the people.
  This vision in which the Supreme Court becomes a superlegislature for 
a MAGA agenda infuriates me. It infuriates me because I believe in 
government by and for the people, not by and for the powerful. It 
infuriates me because I know the pain that these decisions will inflict 
on millions of Americans--the pain of a woman forced by a State 
government to carry a fetus to term that was conceived through rape or 
incest or the pain of any woman, for that matter, who simply is 
unprepared to be pregnant or become a parent; the pain of every single 
person who will have to mourn the death of a loved one lost to an ever-
growing epidemic of gun violence and mass shootings like we saw in 
Uvalde and in Highland Park and in countless other communities with 
more than one mass shooting per day; the pain of the citizens blocked 
from the ballot box, effectively denied their most fundamental right as 
Americans because of voter suppression schemes enacted in many States 
over this past year; the pain of students in our public schools 
pressured to participate in religious acts in conflict with their own 
beliefs; the pain of rural Americans, ranchers, and farmers whose farms 
and ranches will be lost to fire and drought because the Court says the 
Federal Government cannot regulate fossil carbon and fossil methane 
causing climate chaos.
  And I am infuriated because I know more Supreme Court decisions like 
these are coming from the six MAGA Justices on the Court. They want to 
cement their vision of America through superlegislative powers rather 
than calling the balls and strikes defending the Constitution, which is 
their job.
  They have announced that next term they are going to hear a case on 
the fringe doctrine known as the independent State legislature 
doctrine. It has been considered an extremist idea, which says only 
State legislatures have the power to make decisions about Federal 
elections and how to appoint electors. State courts would have no power 
to ensure checks and balances or decide which decisions about elections 
violate a State constitution or ignore the will of the voters, nor 
could State Governors veto such legislative decisions. And that is just 
the start.
  Justice Thomas himself said in his concurring opinion that, based on 
the reasoning in Dobbs, he wants the Court to consider a whole host of 
other rights that have been secured and protected by previous Courts, 
including the possibility of striking down the right to intimacy and 
marriage for same-sex couples and the right to contraception.
  Make no mistake, this is not some sudden occurrence. It is exactly 
what the Federalist Society has been working toward for decades.
  Before joining the Court in 1972, Lewis Powell wrote about the need 
to rebuild the power of industrial elites and fight back ``from the 
college campus, the pulpit, the media, the intellectual and literary 
journals, the arts and sciences, and from politicians'' against 
progressive changes in society. In outlining a plan for rebuilding the 
power of Big Business, he declared that, with an activist-minded 
Supreme Court, the judiciary may be the most important instrument for 
achieving that goal.
  That is exactly why, as majority leader in 2017, Senator McConnell 
stole a Supreme Court seat from one President so another President 
could fill it. He stole it in 2016, and he filled it in 2017 with MAGA 
Justice Neil Gorsuch. It is why, in 2018, Leader McConnell completely 
ignored credible accounts of sexual assault and rushed through a 
confirmation without giving Senators access to the nominee's full 
records and bypassing committee quorum rules to fill another seat with 
MAGA Justice Brett Kavanaugh. And it is why, when a seat opened up in 
another election year, 2020, just weeks before the voters would vote, 
Leader McConnell completely reversed his argument that he had used to 
justify the theft of a Supreme Court seat in 2016, and he rammed 
through the nomination of MAGA Justice Amy Coney Barrett.
  The Republican Party has won one popular vote for President in the 
last 30 years but has appointed two-thirds of the sitting Justices, who 
now see it as their job to become a super-legislature for a cultural 
agenda and corporate power.
  In one of his columns, Eugene Robinson of the Washington Post 
described the resulting unelected, unaccountable majority of Supreme 
Court Justices as a ``junta''--a word used to describe authoritarian 
leaders who rule through edicts rather than through legislative 
determination or deliberation on constitutional principles. It is hard 
to argue with Eugene Robinson's characterization.
  In spite of what the vast majority of Americans want--the protection 
of a woman's right to full reproductive healthcare and more gun safety, 
not less, and free and fair elections--the Court's MAGA majority has 
chosen to rule by Supreme Court edict to inflict their narrow 
preferences for society on hundreds of millions of Americans.
  And they are not just using the regular process for considering 
cases. Over the past 5 years, we have seen a monumental shift in the 
Court's use of emergency orders--the so-called shadow docket--to enact 
sweeping decisions on the American people. These cases don't get the 
full process we are familiar with--formal briefings, formal hearings, 
lengthy deliberations, and opinion writings--because it is argued that 
the applicant would suffer ``irreparable harm'' if their request were 
not immediately granted.
  The shadow docket decisions, by the way, are usually unsigned and 
unexplained. In the past, they have essentially involved death penalty 
cases--cases of literal life and death--of pretty much extreme 
importance to the applicant because, if someone is executed before 
their case is heard, they do suffer ``irreparable harm''--the standard.
  Then, about 5 years ago, we started to see a big shift in the 
emergency cases being taken up and in the substances of them as well.
  We have seen the shadow docket used to stop the Federal Government 
from implementing a vaccine and testing mandate on businesses to 
protect public health in the middle of an unprecedented global health 
crisis that has killed more than a million Americans.
  We have seen it used to uphold a Texas law banning abortion after 6 
weeks.
  We have seen it used when a lower court blocked Alabama's 
congressional map because it violated the Voting Rights Act by diluting 
the political power of Black voters.
  The Court said: You have got to draw a new map that is fair.
  The Supreme Court stepped in with their shadow docket and said: No. 
Alabama can use this faulty map that dilutes the power of Black 
Americans.
  In this situation, the Court didn't stop the infliction of harm; they 
inflicted the harm on Black Americans, who want fair maps, who deserve 
fair maps for voting in our democracy. That gerrymandered map is now in 
place to disenfranchise Black voters in this November's election 
because of the Supreme Court's use of the shadow docket.
  It is hard to see how any of these cases met the test for the shadow 
docket.
  The state of abuse of the shadow docket has gotten so bad and so 
blatant that even Justice Roberts, the Chief Justice of the Court, 
joined a dissent in a case reinstating a Trump administration Clean 
Water Act regulation limiting Federal protections for streams and 
wetlands. This dissent

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stated that the majority's decision ``renders the court's emergency 
docket,'' meaning the shadow docket, ``not for emergencies at all . . . 
. The docket becomes only another place for merits determinations--
except made without full briefing and argument.'' When the Supreme 
Court's Chief Justice says the shadow docket is being abused, you know 
it is true.
  This MAGA Court is so determined to impose their legislative 
priorities and values on our country that they have abandoned one of 
the core principles of American jurisprudence, going back to even 
before there was a United States of America, and that is that the Court 
only rules when there is an actual dispute or controversy in question.

  In their eagerness to cripple the Federal Government's ability to 
fight fossil carbon pollution, the MAGA Justices weighed in on a 
regulation that had never been enforced--a regulation that had been 
withdrawn by President Trump and a regulation which President Biden had 
indicated was never going to be reinstated. Even the utilities that 
would have been regulated didn't want the Supreme Court to decide this 
case. This out-of-control MAGA Supreme Court super-legislature wanted 
to legislate--and legislate they did--violating a core principle that 
the Court does not address moot cases. Moot cases are cases where there 
is nothing still in dispute, and this certainly was the case that this 
case was as dead or as moot as it could be because nobody could be 
impacted by a rule that doesn't exist.
  Why did the Court take up this case?
  Well, we may not be able to specify the exact reasoning by each 
Justice, but the effect is clear. By taking up this case, the Court 
furthered the MAGA policy agenda. Their ruling handcuffed Federal 
authorities' ability to pursue future limitations on pollutions from 
fossil fuels like carbon dioxide and fossil methane. This is to the 
enormous benefit of the fossil fuel billionaires who funded the massive 
dark money campaigns that supported these Justices' confirmations. That 
situation of their breaking precedent to benefit the fossil 
billionaires, who had just funded their confirmation campaigns, reeks 
of corruption.
  When generations ahead of us look back at this moment, I have no 
doubt--especially when they look at this year, 2022, and what the Court 
did in a single year--they will look back with a sense of profound 
disbelief--disbelief--like that disbelief that we experience when we 
look back on cases like Dred Scott, which dehumanized Black Americans 
and legitimized slavery, or Plessy v. Ferguson, which locked in 60 
years of vicious discrimination and racial terrorism under a separate 
but equal philosophy.
  The disbelief that future generations will have will be directed at 
Dobbs--a decision this year in which the Court obliterated privacy and 
put an overbearing government in charge of women's reproductive health.
  They will have the disbelief that, in Kennedy v. Bremerton--decided 
this year--the Court destroyed freedom of religion in our public 
schools; the disbelief that, in West Virginia v. EPA--a decision this 
year--the Court violated centuries of precedent to rule on a regulation 
that is no longer on books, with the effect--perhaps the goal--of 
limiting the future regulation of greenhouse gas pollution; the 
disbelief in New York State Rifle & Pistol Association v. Bruen--
decided this year--that the Court ruled that a State legislature can't 
require folks to have a good reason to carry a concealed weapon in 
public spaces.
  Let me be clear. This activist, extremist MAGA Court faces a 
legitimacy crisis, and a legitimacy crisis for the Court is a crisis 
for our democratic Republic. Part of that illegitimacy is Justices of 
the Supreme Court selectively using a doctrine of so-called originalism 
to justify their politically inspired decisions. The doctrine of 
originalism is based on a reasonable argument, one on which you and I 
would say makes sense: a goal of understanding what the Founders meant 
when they wrote what they wrote in our Constitution more than two 
centuries ago. But if that effort is applied selectively, it simply 
becomes a measure to justify, after the fact, where the Justices want 
it to come out. They use it when it works, and they abandon it when it 
doesn't.
  For example, the Founders wrote the Second Amendment to ensure that 
members of well-regulated militias had access to their rifles, but the 
so-called originalists on the Court cast originalism aside, declaring 
that the Founders wrote that clause to ensure that nonmilitia members 
had the right to bring assault rifles--that didn't exist in 1787--onto 
subways, which didn't exist in 1787. That is bogus originalism in its 
purist form.
  Consider this: Corporations, as we know them today, did not exist in 
1787. Yet the so-called originalists on the Court insist that the 
Founders' vision of the First Amendment, to protect freedom of speech, 
gives corporations speech rights even though the word ``corporation'' 
doesn't appear in the Constitution--a point that they use when they 
want to take an originalist argument: that the Founders had to have it 
be something written in the Constitution and be something they 
discussed and something they considered and something they envisioned. 
None of those are true. Not a one of them is true in this case.
  The MAGA Court also claims that a corporation is a person, which no 
Founder would ever have argued. They didn't even know what a 
``corporation'' was because they didn't exist in this form that we have 
now.
  The MAGA Court goes on to claim that the members comprising the 
corporate personhood--those are the stockholders of a corporation--have 
absolutely no right to know how that corporation that they are part of 
spends their money. This is absurdity stacked on the fallacy that a 
corporation is a person.
  I have yet to see and yet to hear any plausible explanation as to how 
the MAGA Justices can be confident that the Founders intended for 
billionaire CEOs to hijack the accumulated wealth of their stockholders 
without their stockholders' knowledge or permission or opportunity to 
know what is being said and to use that money as speech and to spend it 
on secretly funded campaigns, including campaigns to confirm Supreme 
Court Justices.
  The problem we face, colleagues, isn't just a MAGA-majority Court 
enacting terrible policy rather than defending the balls and strikes 
against the Constitution. The problem is greater if the highest Court 
in the land loses its legitimacy, the law itself loses its legitimacy. 
If the American people see the Supreme Court Justices making clear that 
the law has no meaning other than their political preferences, then the 
law is not the foundation for our society that it is supposed to be.
  We have seen with deadly results on January 6, 2021, the consequences 
to our policies, to our politics, and to our society when the rule of 
law is replaced by violence and power as the organizing principle for 
society.
  The Court is essential in a society based on the rule of law, and it 
is essential to have a Court that honors the law rather than trying to 
write the law.
  This MAGA majority and its desire, and operation as a super-
legislature--unelected, lifetime appointments--is a dire threat to our 
Republic. Here in Congress, we must not only shine a light--a 
spotlight--on the threat; we must stop the runaway MAGA Court from 
corrupting the rule of law and try to restore the legitimate role of 
the Court as a panel defending our Constitution.
  Some will say there is no way to restore the Court and that any 
strategy for restoring the Court will simply compound the problems we 
are now facing, and I agree that there is no simple way to restore the 
legitimacy of the Court.
  Back in 2017, when then-Majority Leader McConnell was striving to 
complete the theft of the Supreme Court seat taken from the 
administration of Barack Obama, I took to this floor for 15\1/2\ hours 
with one simple message: Don't do it. Don't do it because, if you do, 
you will damage the legitimacy of the Court and there will be no simple 
path, no easy remedy to restore the Court's legitimacy.
  But Leader McConnell, he doused the Supreme Court with gasoline on 
that day, and he set it on fire. He did the damage. I stood here for 
15\1/2\ hours and said don't do it.
  You know, we take an oath of office to a Constitution. That involves 
defending the Court, not delegitimizing the Court, not stealing Supreme 
Court

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seats. It was the first time in the history of the United States of 
America that this Senate failed to debate and vote on a nominee. But 
here we are; the damage is done. What do we do now?
  When an arsonist sets fire to your house, you don't let it burn 
because you are worried about water damage. You have to strive to put 
out that fire, regardless of how difficult the task. So I say to you 
today, we cannot accept the defeatist attitude that fails to confront 
the forces destroying our Republic.
  There are two things we must do. Mission one, we have to reform the 
ability of this broken Senate to serve as a legislature because, if it 
serves effectively as a legislature, it can serve as a counterweight to 
decisions of a corrupted Court.
  The second thing we have to do is put all options on the table and 
debate them for directly reforming the Court, recognizing that we are 
left with difficult choices on how to do that. But we have to step up. 
It is necessary to save our Republic.
  So let's take each of these missions in turn. The first is to restore 
the Senate.
  Our goal: Restore the Senate as a legislative body to serve as a 
counterweight to the corruption of a MAGA-majority Court.
  There are three massive problems currently afflicting the Senate's 
ability to serve as a functioning legislative body. First, we spend 
virtually all of our time on nominations, so much time that it keeps us 
from doing much legislating, even though we have a massively complex 
society and a lot of possibilities for making it work better.
  When George Washington was assembling his first administration, he 
had to appoint and the Senate had to confirm four Cabinet positions: 
Secretary of War, Secretary of the Treasury, Secretary of State, and 
Attorney General--four positions. Today, the Senate is responsible for 
confirming over 1,200 Presidential appointments to executive branch 
positions and commissions.
  Now, in the past, both parties worked to exercise the Senate's advice 
and consent responsibilities in a manner that minimized the amount of 
Senate time required. Most were done by unanimous consent late at 
night, when practically anyone was here because most nominations are 
not ones to which anyone has an objection.
  In the entire decade of the 1960s, there was one vote required to 
close debate on a nominee--one, in an entire 10 years. But, last 
decade, that number went to 545. Now, it is like every nomination. 
Virtually every nomination we have to file to close debate and vote to 
close debate before we can vote on the nominee. And do you know what? 
The way it works, you can also require 30 hours of debate after the 
vote to close debate succeeds.
  So the rules, which were designed for exceptional situations where 
there is a significant objection, are now used as partisan obstruction.
  Democrats are in the minority. They want to tie up the Republicans. 
So they have little time to legislate.
  Republicans are in the minority. They want to tie up the Democrats. 
So they have little time to legislate.
  They want each other to fail, partly because they disagree and partly 
because they know if the other side succeeds in making something work, 
the voters might reward them at the ballot box.
  We have to massively streamline this nomination process. We have to--
100 Senators--work together, not do what is best for us when we are in 
the majority and oppose it when we are in the minority, or vice versa. 
We all have a responsibility to completely streamline that process so 
we can return to being a legislature.
  The second big problem for the Senate is that the rules provide a 
complicated, time-consuming process for debating and voting on whether 
to debate a bill. It involves a motion to proceed or requirement to 
close debate on the motion to proceed and whose nomination is up to 30 
hours of additional of debate--all on the question of whether to 
debate. You have 100 capable people sent here by their constituents in 
their various States to solve problems for America, not to spend a week 
debating whether to debate a single bill. That could be a week spent 
debating the amendments that could make the bill better, a week spent 
considering individual pieces of the bills so the public knows where we 
stand and there is public accountability. But, instead, we have 
partisan paralysis. A completely dysfunctional Senate, that is what we 
have. We have to change the rules to stop this completely meritless 
waste of the time and efforts of 100 Senators.
  It is an easy solution: 1 hour spent debating whether to debate a 
bill, and then a simple majority vote, either we go to the bill or we 
don't; easy solution. One hour makes much more sense than 1 week.
  The third big problem this Senate Chamber faces is a secret silent 
filibuster. Under the Senate rule--and by the way, the term 
``filibuster'' is really inappropriate because this involves no 
speaking of any kind. Under the Senate rule, 41 Senators can, operating 
as a block, veto the opportunity for the Senate to debate a bill, veto 
the opportunity for the Senate to consider an amendment, and veto the 
ability, after amendments have been considered, to have a final vote on 
the bill. It is the triple veto: three opportunities for the minority 
to blockade the majority from being able to consider legislation to 
address the issues facing America. And both parties have attempted to 
use it when they are in the minority. We have to restore the ability to 
actually debate.
  It is exactly what the Founders feared. When I lay out that 41 can 
block and veto these 3 steps of the process, it means to reverse it--
that 60 out of 100, a supermajority, has to agree to go forward through 
each of those three steps.
  The Founders warned us: Never allow the minority to make the 
decisions by requiring a supermajority. Don't to it.
  That is why James Madison said that, with a supermajority, when ``the 
general good might require new laws . . . the principle of free 
government would be reversed. It would no longer be the majority that 
would rule: the power would be transferred to the minority.''
  It is why Alexander Hamilton warned that a supermajority requirement 
would result in ``tedious delays; continual negotiation and intrigue; 
contemptible compromises of the public good.''
  He also warned that ``the history of every political establishment in 
which this principle has prevailed''--the principle of supermajority--
``is a history impotence, perplexity, and disorder.''
  Now, you may wonder if the Founders had simply read about someone 
somewhere requiring a supermajority for legislature and said it didn't 
work very well and thought, We had better warn Americans not to do 
this. No, they were writing from their direct experience because, as 
they were drafting and debating our 1787 Constitution, they were 
actually in the middle of living through the impotence and incompetence 
of the Confederation Congress.
  Under the Articles of Confederation, which preceded our 1787 
Constitution, the Congress had to have a supermajority on every 
provision; meaning, the position of the minority could prevail over the 
position of the majority. The result was paralysis on the most 
fundamental issues they faced. They failed to raise the funds to pay 
the pensions of the veterans who spilled their blood in the 
Revolutionary War that created this Nation. They failed to raise the 
funds to put down Shays' Rebellion.
  Well, today, we have not one stage of veto, like they faced in the 
Confederation Congress, we have the triple veto power under the current 
secret, silent filibuster, and we are seeing the same impotence, the 
same paralysis, the same partisanship that it drives.
  The triple veto power of the minority is destroying the Senate to 
address challenges facing America, and there are a lot of them.
  We have got the climate crisis that is literally setting our country 
on fire. Right now, at this very moment, around 40 million Americans 
across the Plains and the Mississippi Valley are dealing with alerts 
for dangerous and intense heat, while firefighters are confronting 89 
large fires across 12 States. And as of last week, four times as much 
acreage has burned this year as last year at this moment.
  And it is not just America, of course. Across the Atlantic, Europe is 
going through a recordbreaking heat wave, reaching temperatures some of 
those

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places have never seen and causing wildfires to burn in France and 
Spain and Italy and Greece.
  Congress should be immersed in considering bills to address the 
climate crisis that is damaging communities across our country, and not 
just through fires but through rising sea levels and rising erosion, 
through pine beetle infestations and mosquito infestations, through 
stronger hurricanes and stronger tornadoes, and, certainly, through the 
power of multiyear droughts. But we are not because the triple veto of 
the silent, secret filibuster afflicting this body is blocking us from 
doing so.
  We have a housing crisis. Out-of-control rents and prices make it 
impossible for millions of Americans to afford a decent home to rent or 
buy. And colleagues have one idea after another about how we should 
address it, but because we are paralyzed and our process is taken up, 
our time is taken up with nominations and debating whether to debate 
and we have the triple veto of the secret, silent filibuster, they 
can't move forward. And we aren't debating, discussing, and hopefully 
passing measures that can make a difference.
  And Americans are outraged by the prices they pay on drugs, which are 
so much higher than any other developed country. Eighty percent of 
Americans say: Do something about it. And I think the other 20 percent 
don't realize how much we are getting ripped off. And Americans know we 
should get the best price because we invest the most in the research 
and development that creates these drugs, not the worst price, and they 
are absolutely right. And we would have passed legislation by now to 
get the best prices in the developed world, but we are blocked by the 
triple veto of the secret, silent filibuster.
  And now States are passing laws to block targeted groups of Americans 
from voting. We can fix that by passing S. 1, the For the People Act, 
or its reincarnation, the Freedom to Vote Act, but we can't because it 
was blocked by the triple veto of the secret, silent filibuster.
  Let me be absolutely clear. The single most effective way we can 
counterbalance an out-of-control Court with a MAGA agenda is to have a 
functioning Senate. That is the most immediate remedy available to us 
to respond to this terrible affliction undermining our Republic.
  If the Court says there is no problem with gerrymandered districts, 
where politicians choose their constituents instead of Americans 
choosing their leaders, as they did in the 2019 Rucho v. Common Cause 
decision, well, a reformed, restored Senate could pass legislation to 
require nonpartisan commissions to draw legislative districts. At least 
we could have a robust debate over it, maybe pass a few amendments 
modifying it in different forms--or perhaps find some other solution--
if we had a functioning legislative process.
  If the Court says there is no limit to dark money from corporations 
and billionaires who flood and drown out the voices of ordinary 
Americans and campaigns, as they did in the 2010 Citizens United 
decision, a reformed, restored Senate could pass the DISCLOSE Act to 
shine a light on every dollar and where it is coming from in American 
campaigns.
  If the Court says that anyone who wants to be able to carry a 
concealed weapon should be able to like they did in their New York 
State Rifle & Pistol Association v. Bruen decision, a restored, 
functioning Senate could pass stronger gun safety laws that most 
Americans support, like ending the background check loophole--when guns 
are bought and sold by unlicensed parties online or at gun shows--or by 
outlawing the kinds of large magazines that carry 30 or more bullets 
that are often used in mass shootings.
  And when the Court went to abnormally great lengths to decide in last 
month's West Virginia v. EPA that the Agency can't regulate fossil 
carbon or fossil methane emissions, a functioning Senate would be able 
to step up and create the programs designed to speed up the transition 
to renewable energy, which would have the added benefit of ending our 
addiction to oil and dropping the prices at the pump, and it would keep 
money out of the hands of dictators in Russia, Saudi Arabia, and Iran. 
But the triple veto of the secret, silent filibuster has blocked us 
from doing so.
  The remedy is not to eliminate the filibuster. The remedy is to 
reform it. The right reform is to adopt the public, talking filibuster. 
The talking filibuster would reassert the fundamental principle of 
legislative conduct: the Senate Code, adopted by the original Senate. 
Under that code, the Senate listened to every Senator's perspective, 
and then it took a vote on the issue, be it a bill or be it an 
amendment. That was the Senate Code.
  The original rules provided that every Senator had the right to speak 
twice to a question. It was rule No. 4 in the original rules. It is in 
our rules today. But the spirit of that code--listening to each Senator 
and then voting, with the majority winning, not losing--that part is 
gone. Now, it is the minority that can exercise a triple veto, a veto 
absolutely exactly the opposite of what the Founders said to us. They 
said: Don't do it. And we have done it in triplicate form, paralyzing 
this place and accentuating the temptation of yielding to partisanship 
rather than problem-solving.
  Jefferson did say that this rule, this code of listening to every 
Senator and voting, should not be abused. In fact, he said this in his 
manual for rules in 1801:

       No one is to speak impertinently or beside the question, 
     superfluously or tediously.

  It worked for the Founders. They exercised some self-control, so much 
so that they didn't need the rule that they had to close debate. They 
just simply listened to everyone with mutual respect and then said: OK. 
Let's take a vote.
  You want to see that in action today? Watch the committee process on 
a bill with amendments. There is no one filibustering, speaking 
forever. There is no one requiring a supermajority to close debate in 
committee. They operate--we operate--in committee, much like the 
original Senate, and it works pretty well, but we have completely lost 
that discipline when it comes to debate here on our floor.
  So the early Senate had a rule for the previous question motion, to 
close debate or accelerate the closure of debate. And when they rewrote 
the rule book--and Aaron Burr was in charge of it--in 1806, they 
dropped the rule because they never used it, didn't feel they ever 
needed it.
  Well, we need to reclaim that vision, and our rules have gotten so 
crazy, so out of whack, that we encourage partisanship and paralysis 
rather than problem-solving. Let's fix that.

  So let's have the talking filibuster. The talking filibuster says, 
Yes, you can speak on the issue. We will listen to everyone. You can 
speak twice. But then we vote, and the majority wins--not a 
supermajority required. The minority doesn't win over the majority. The 
majority wins.
  That was the Senate. That was the design of our Constitution that we 
have the responsibility to restore because we took an oath to the 
Constitution. So let's restore it. And that talking filibuster 
encourages bipartisan problem-solving. The minority, be it the 
Democratic or Republican, that wants to slow things down for leverage, 
they can. So they have significant leverage, but, on the other hand, 
they have an incentive to negotiate because they are not sure how long 
they can maintain continuous debate. And that is the heart of the 
talking filibuster: maintaining continuous debate. If there is a break 
in debate, you go to the vote.
  Meanwhile, the majority has an incentive to compromise because they 
know the minority can tie this place up on a single bill for week after 
week, and they can't afford to have that much time taken over a single 
bill. So the talking filibuster restores an incentive for compromise 
and bipartisan problem-solving and, in the end, restores the vision 
that the majority makes the decision, not the minority. In the end, it 
gives the minority a voice, it gives the minority massive leverage, but 
it takes away their veto. That is the right way to legislate in a 
democracy.
  As I noted before, fixing the Senate is probably the best immediate 
tool we have for repairing the damage from the Supreme Court across the 
grounds. But we also have to consider every possible remedy to restore 
the Court itself, to restore a Court that calls the balls and strikes 
on the Constitution, defending

[[Page S3535]]

its core principles, and recognizes it is not there to legislate--not 
to legislate on the left side, not to legislate on the right side. They 
are there to defend the Constitution.
  Well, reforming the Court won't be easily done. But President Biden 
did convene a Commission to explore the option, and that Commission has 
produced a lengthy, lengthy report. This is part of it: The 
Presidential Commission on the Supreme Court of the United States, 
December of last year.
  I encourage all my colleagues to read this and consider the ideas in 
it. In this 300-page report, the Commission does review the history of 
how the Court has been in different phases, and its size has changed 
all the time because that is not established in the Constitution. It 
has been as few as 5, and it has been more than 10. There was not nine 
locked in like it is now.
  And, certainly, one of the ideas they review is adjustment to the 
size of the Court. Many people have said that is something to look at 
to balance what has happened with the Court, with the stolen Supreme 
Court seat and a decision by several Justices to be a legislature 
rather than a court.
  Well, that is one idea. Another is implementing term limits or a 
mandatory retirement age because, when the Constitution was first 
written, people weren't living the long lives they have today, and they 
didn't stay in the Court forever.
  In 1787, the Founders wrote that Justices would hold their seats 
during good behavior. Now, I am not sure that every Justice across 
these grounds has been engaged in good behavior when they are choosing 
to legislate rather than to rule on the defense of the Constitution, 
but there is no easy way to remove them from the Court for misbehavior.
  But one possibility is for the Court members to rotate out with term 
limits of some kind. That is one possibility.
  In much of our history, Justices only served an average of 15 years 
on the Court. The average is now 26 and getting longer. And, did you 
know, America is the only constitutional democracy that gives lifetime 
presence on the Court, that doesn't have either a term limit or a 
mandatory retirement age?
  This report, this Commission, has other ideas in it: rotating 
membership on the Court with judges selected from the circuit court. 
You know, the original Supreme Court, they served as circuit court 
writers. They went out and made decisions across this country. They 
didn't just sit in a room in the capital. So there is some precedent 
for that idea.
  And others point out that there is the power to restrict the Court's 
jurisdiction. There are pros and cons for these various ideas, and our 
commitment needs to be to examine them. The American public is open to 
examining them.
  Earlier this week, the FOX News poll reported that 66 percent of the 
folks in their poll support an 18-year term for Justices, and 71 
percent support a mandatory retirement age. So the American people are 
open to trying to fix the challenge with the Court. We have to be open 
to fixing it, and we need to look at every option and idea very 
carefully to ensure that the highest Court in our land fulfills the 
vision for it in our Constitution. And the vision in our Constitution 
was not that it would be an unelected super-legislature.
  Colleagues, this is a perilous moment for our Republic. It is a 
moment when the will of the people is being overrun by an extreme 
agenda of a Court legislating from the Bench, imposing their narrow and 
precedent-destroying will on all Americans. We have to restore the 
ability of this Senate to operate as a legislature that can be a 
counterbalance to what the Court does, and we must thoughtfully 
consider every proposal for reforming the Court directly.
  We can and we must act before it is too late. We can't stand by and 
watch the continuous disintegration of our Republic.
  Our oath to the Constitution demands that we protect these 
institutions and repair them when they go off track. And when we do, 
the next July 4, we can all join together and celebrate the restoration 
of our paralyzed and partisan Senate into an actual legislative body. 
We can celebrate the restoration of Americans' rights that are being 
continuously stripped away across the grounds by the Supreme Court. We 
can have a renewed belief and confidence in the integrity of all of our 
institutions and our democratic form of governance. That would be a 
moment justifying a massive celebration next July 4.

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