[Congressional Record Volume 170, Number 113 (Tuesday, July 9, 2024)]
[Senate]
[Pages S4253-S4255]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. THUNE. Mr. President, the Supreme Court recently concluded its 
term, and, as predicted, Democrats met the decisions they didn't like 
with howls of outrage. ``We will fight to rein in the outrageous abuses 
of this brazen Court,'' one Democrat offered temperately. ``We must 
expand the Court now,'' another cried, before it ``destroy[s] our 
democracy and our planet.'' Yet another announced that she would be 
filing impeachment articles against a Supreme Court Justice or 
Justices, presumably for the high crime of ruling in a way that she 
didn't like.
  For years now--since at least the last administration--Democrats have 
been engaged in a concerted campaign to paint the Supreme Court as 
illegitimate and extreme. We have heard about ``stolen seats'' and 
``MAGA justices'' and other melodramatic statements meant to persuade 
the American people that the Supreme Court has somehow been hijacked. 
But what it all boils down to is this: Democrats think that the only 
legitimate Supreme Court is a Supreme Court that rules in line with 
Democrats' policy preferences. That is it. That is what all of this 
boils down to.
  Democrats can dress things up any way they like with a host of 
invented reasons for why this Court is illegitimate, but the truth of 
the matter is, Democrats' real problem with this Court is that a number 
of the Justices have had the temerity to periodically deliver rulings 
with which Democrats disagree. If this Court were universally 
delivering the outcome the Democrats want, they would have no problem 
with the Court or its Republican nominees.
  I could spend time debunking Democrats' wild claims. I could point 
out just how often this Court delivers unanimous decisions. Yes, 
contrary to what you might think from Democrats' lurid statements, the 
Democrat nominees and the Republican nominees are frequently in 
unanimous agreement. Or I could talk about just how often some of the 
Court's more conservative Justices and some of the Court's more liberal 
justices agree. But I am not going do that today because I would like 
to spend a minute talking about the profound irresponsibility Democrats 
are displaying.
  We hear a lot from Democrats about their concern for our 
institutions, and yet they are attempting to delegitimize a bedrock 
American institution, all for the crime of periodically daring to 
deliver decisions with which Democrats disagree.
  At a time of deep political division, I can think of few things more 
irresponsible than attempting to shake Americans' faith in the 
impartiality of the Court and the legitimacy of our institutions.
  I realize that Democrats don't like it when a decision doesn't go 
their way, and I completely understand that. I have disagreed with a 
few Supreme Court decisions in my time. But it is one thing--a 
legitimate thing--to disagree with a decision; it is another thing 
entirely to let your disagreement lead you into attempting to 
delegitimize a duly constituted Court composed of nine duly confirmed 
Justices.
  I hate to tell Democrats, but in a democratic republic such as ours, 
you don't always get your way, and the

[[Page S4254]]

proper response when you don't get your way is not to attempt to tear 
down institutions or pack the Court so that you always get the outcome 
you want.
  Before I close, there is one other thing I would like to address, and 
that is the disturbing anti-religious sentiment that has cropped up in 
recent Democrat attacks on the Court. It is not a new thing for 
Democrats, of course.
  We all remember the Democrat ranking member of the Senate Judiciary 
Committee telling then-circuit court nominee Amy Coney Barrett that 
``the dogma lives loudly within you,'' with the implication that anyone 
who takes his or her religious faith seriously can't be trusted to hold 
public office.
  Another judicial nominee faced scrutiny for his membership in the 
Knights of Columbus--a Catholic organization that participates in such 
disturbing activities as serving veterans, raising money for the needy, 
and providing young people with scholarships.
  Of course, during the last Presidential election cycle, a Biden 
staffer stated that she would prefer that orthodox Catholics, Muslims, 
and Jews not sit on the Supreme Court.
  Now it would appear that that anti-religious sentiment is back, with 
more than one Senate Democrat suggesting that certain members of the 
Supreme Court can't be trusted because they happen to take their 
religious faith seriously. These Democrats take the fact that these 
members of the Court have periodically ruled in ways that Democrats 
don't like as evidence that they are attempting to impose their faith 
instead of the law, with the implication that religious people are 
incapable of distinguishing between the two.
  The Constitution is very clear on whether being a person of faith can 
disqualify you from public office. From article VI:

       [N]o religious Test shall ever be required as a 
     Qualification to any Office or public Trust under the United 
     States.

  Let me just repeat that.

       [N]o religious Test shall ever be required as a 
     Qualification to any Office or public Trust under the United 
     States.

  It is becoming clear that that isn't a section of our Constitution 
that Democrats agree with or at least understand, and that in and of 
itself is deeply disturbing.
  I shouldn't have to tell Democrats that religious people are as 
capable as any other of distinguishing between their beliefs and the 
law or that our Founders did not intend for religious people to be 
second-class citizens or that a Supreme Court Justice disagreeing with 
a Democrat does not mean that the Supreme Court Justice is attempting 
to impose his or her faith. It likely means that he or she is trying to 
impose the law and the Constitution.
  I am a little tired of members of the Democratic Party promoting the 
un-American idea that taking your faith seriously makes you less 
qualified to participate in the public square.
  If Democrats really cared about protecting our democracy and American 
institutions, they would stop trying to undermine the legitimacy of the 
Supreme Court. But with Democrats' inability to deal with not getting 
their way--and with an upcoming election this November--I am not going 
to be holding my breath.
  I yield the floor.
  The PRESIDING OFFICER. The majority whip.
  Mr. DURBIN. Mr. President, it was 11 years ago that I wrote a letter 
to John Roberts, the Chief Justice of the Supreme Court--11 years ago--
asking him a basic question: Mr. Chief Justice, why is it that you 
believe the nine Justices that sit on the Supreme Court should be 
treated differently than any other person in Federal Government when it 
comes to a code of ethics?
  I didn't receive a reply to that letter. We know what has happened 
since. Through private investigations and investigations by 
journalistic organizations, we have come to discover that at least one 
sitting Supreme Court Justice--Clarence Thomas--has received more than 
$4 million in gifts from billionaires. What kind of gifts? Travel, jet 
airplane travel, travel on yachts, long-term vacations--worth more than 
$4 million, largely undisclosed to the American public.
  What is going on here? A Justice on the Supreme Court receives over 
$4 million in gifts from billionaires and doesn't disclose it to the 
public? What about other Federal judges in like circumstances? Do they 
have requirements when it comes to the gifts they can accept and what 
has to be disclosed? Of course they do--in detail. It is only the nine 
Supreme Court Justices that exempted themselves from the basic, 
enforceable, transparent code of ethics that applies to every other 
Federal judge in America.
  So when my friend from South Dakota comes to the floor and says we 
are being too critical of the Supreme Court--$4 million in gifts? If 
any Member of the Senate received that kind of largesse, they would be 
held responsible for it under the law--and should be.
  Secondly, this notion that being critical of the Supreme Court is 
somehow critical of the institution, I do raise questions--and I will 
in the statement I am about to make this morning--as to some of the 
most recent decisions. I think they are terrible. I think that in terms 
of their impact on the future of the Court and the future of the 
Constitution, we have legitimate concerns that should be raised. But to 
raise those questions is not to attack the integrity of the institution 
of the Court but the process and the decisionmaking that the Court has 
made.
  Of course, throughout history, there have been times when the Court 
just plain got it wrong--Plessy v. Ferguson, a case which dominated for 
decades and said that separate but equal was acceptable under the law. 
It wasn't until Brown v. Board of Education in the 1950s that they 
finally reversed that. For decades, Plessy--this terrible, wrongheaded 
decision--governed the administration not only of justice but of 
education in America. It damaged and destroyed lives right and left. 
Were people critical of it? Yes. And they should have been.
  We are living in a democracy with freedom of speech, and we should be 
able to express ourselves when we have serious misgivings about 
decisions by the Court.
  I want to address two recent decisions by this Court that I think 
really deserve special attention.
  The Court recently finished its term with a series of disastrous 
decisions that once again upended our constitutional landscape.
  The Court's radical, conservative supermajority discarded decades of 
longstanding precedent to protect rich and powerful interests. The 
Court's decisions will immunize Presidents who commit crimes. Let me 
repeat that. The Court's decisions will immunize Presidents who commit 
crimes, make it harder to prosecute corrupt politicians, and make it 
easier for corporate special interests to overturn Federal protections 
that Americans need to remain safe and healthy.
  Meanwhile, the Court's conservative supermajority failed to protect 
some of the most vulnerable, upholding laws that criminalize 
homelessness and denying Americans the right to challenge the 
government when their immigrant spouses are denied a visa.
  The far-right Justices responsible for these decisions may claim they 
are guided by ``textualism'' or ``originalism''--we hear those terms 
frequently--but the reality is that they are engaged in judicial 
activism, pure and simple.
  The Justices are cherry-picking their way through constitutional text 
and history to impose their own ideological agenda on the American 
people. In doing so, the majority has not only further damaged the 
Court's institutional integrity, they have undermined our democracy.
  Start with the Court's rulings in Loper and Relentless. In these 
cases, the Court overruled Chevron v. Natural Resources Defense 
Council, a landmark, 40-year-old decision holding that courts must 
provide deference to an Agency's reasonable interpretation of ambiguous 
Federal law.
  With authorization from Congress, scientists, engineers, and other 
experts at these Agencies use their expertise to establish rules that 
help to ensure that our food is safe, that medications are effective as 
promised, that we have clean air and water, stable financial markets, 
fair working conditions, and more. But after the Court's decision to 
overrule Chevron, unelected judges with no expertise will be empowered 
to

[[Page S4255]]

overturn rules issued by Agency experts when they are challenged by 
corporations.
  In another case, Ohio v. EPA, Justice Neil Gorsuch inadvertently 
demonstrated how ill-equipped the Justices on the Court are to 
substitute their judgement for Agency experts. In an opinion siding 
with Republican States that challenged an EPA pollution control plan, 
Justice Gorsuch repeatedly--repeatedly--and incorrectly referred to 
nitrous oxide, which is laughing gas, as we know, rather than nitrogen 
oxide, the pollutant the EPA is seeking to control. So the Court was 
arguing that the Agencies didn't have the power to make these decisions 
in detail and failed to describe properly the entity that was being 
regulated by the EPA.
  The Court's decision giving Justices like Justice Gorsuch the power 
to second-guess these Agency experts is a body blow to our government's 
ability to protect the health and safety of the American people.
  In another misguided opinion, the Court's six Republican-appointed 
Justices ruled in Trump v. United States that a President may be immune 
from criminal prosecution for abusing the power of government for 
personal or political gain.
  This case is unimaginable.
  Specifically, the Court held:

       [T]he nature of Presidential power entitles a former 
     President to absolute immunity from criminal prosecution for 
     actions within his conclusive and preclusive constitutional 
     authority. And he is entitled to at least presumptive 
     immunity from prosecution for all his official acts.

  Not only does the decision bar prosecuting a President for any 
official act, it prohibits prosecutors even from using any official act 
as evidence to help prove a President engaged in illegal unofficial 
acts.
  And, in ruling that Donald Trump is ``absolutely immune from 
prosecution for the alleged conduct involving his discussions with 
Justice Department officials,'' the Court has given a green light to a 
future President to use the Justice Department for corrupt purposes.
  The Justice Department, whose mission is to enforce the law, defend 
the interests of the United States, and ensure public safety, will no 
longer enjoy its traditional independence. It could, instead, serve as 
a weapon to be wielded by a corrupt President.
  So what does all of this mean?
  It means that a corrupt President may hide behind their office for 
protection from prosecution, under the law, for even the most egregious 
wrongdoing.
  It means the Supreme Court's conservative majority has effectively 
endorsed Richard Nixon's infamous claim that ``when the president does 
it . . . that means that it is not illegal.'' In fact, much of the 
conduct at the heart of Nixon's Watergate scandal could, arguably, be 
considered official acts, making them presumptively immune under the 
current interpretation.
  And, in the aftermath of Trump v. United States, a court would not 
even have been allowed to question Nixon's motives in order to have 
determined whether he acted unlawfully.
  The Court's ruling has also left Congress and the judicial branch 
with limited options when dealing with a delusional or a corrupt 
executive.
  The minority leader stated during the second Trump impeachment trial:

       We have a criminal justice system in this country. We have 
     civil litigation, and former presidents are not immune from 
     being accountable by either one.

  Unfortunately, this is no longer the case because the Court's 
conservative majority has demolished the ability to hold any President 
accountable for abuses of power.
  It was not long ago that then-Judge Roberts sat before the Senate 
Judiciary Committee and told me directly and personally:

       No man is above the law.

  Then-Judge Gorsuch also testified, and he said:

       Nobody is above the law in this country.

  And then-Judge Kavanaugh told the committee:

       No one is above the law. And that is just such a 
     foundational principle of the Constitution and equal justice 
     under the law.

  But now they seem to think that a corrupt President is, in fact, 
above the law.
  When the American people head to the polls this November, they should 
keep this case, Trump v. United States, in mind. We must ensure that 
our next leader is a person who will respect the rule of law even 
though he is now, because of this Supreme Court decision, immune from 
prosecution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.