[Congressional Record Volume 171, Number 185 (Wednesday, November 5, 2025)]
[Senate]
[Pages S7915-S7916]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Federal Judiciary
Mr. GRASSLEY. Mr. President, I come to the Senate floor today to
express my concern about recent attacks on the legitimacy of the
judicial branch of government.
A fair and neutral judiciary plays a very indispensable role in our
constitutional structure. Judges wield enormous power, and their
decisions determine the legal rights of the parties before them.
One especially potent power of the judiciary is the practice of
judicial review. As we all know, the judiciary sometimes decides cases
that impact the operation of laws passed by Congress or the actions of
the executive branch. We accept this judicial review because neutral
arbiters are necessary in a system based upon the rule of law, but this
system only works if everyone accepts that the arbiters are, in fact,
neutral. Litigants, the coequal branches of government, and the
American people must be confident that judges are merely saying what
the law is and not what those judges wish the law to be.
Our judicial system also requires respect for appellate review. The
Federal courts are hierarchal, and the rule of law depends on public
confidence that lower courts will faithfully apply and respect the
decisions of the higher courts. It is no surprise that some people are
not always happy with how the courts exercise judicial power. Criticism
is fair and sometimes warranted, but too often it has strayed into
outright attacks on the judiciary as an institution.
Today, however, I am here to discuss attacks on the judiciary coming
particularly from a concerning place that is within the judiciary
itself. It is one thing for the political branches or the public to
criticize the Supreme Court. It is entirely different for Federal
judges themselves to undermine their own branch of government. In two
high-profile instances in the last few months, numerous judges have
anonymously gone, as you might expect, to the press to denigrate the
Supreme Court. This ought to be deeply concerning not only to this
Senator but to the public at large.
On September 4, 2025, NBC News published a report alleging that 12
Federal judges gave anonymous interviews, and 10 of them took that
opportunity to criticize the Supreme Court.
One judge described the Supreme Court's conduct as ``inexcusable.''
Another judge said the Supreme Court ``is effectively assisting the
Trump administration in `undermining the lower courts.'''
Then we have a big hit piece by the New York Times on October 11,
2025. That newspaper ran a story where they sought out judges
specifically to criticize the Supreme Court. The Times approached 400
of the almost 1,500 Federal judges with questionnaires. The Times
intentionally solicited judges in districts that litigants considered
to be unfavorable to the current President. Of the 400 judges
approached, thank God only a small percentage took the offer. I think
this is an important point. Then we can draw the conclusion most
Federal judges didn't take the bait of the New York Times because it
violated the ethics of the judiciary. So only a small percentage did,
but that is still a fabulous 65 judges responding to the Times'
questionnaire. It happens that some responded with very harsh
criticism. They then gave the Times the fodder that they needed to spin
the narrative of a judiciary in crisis.
The Times wrote:
[F]ederal judges called the Supreme Court's emergency
orders ``mystical,'' ``overly blunt,'' ``incredibly
demoralizing and troubling'' and ``a slap in the face to the
district courts.''
One judge compared their district's current relationship with the
Supreme Court to a ``war zone.''
Another said the courts were in the midst of a ``judicial crisis.''
I am deeply concerned--and I hope the public at large is--that these
public
[[Page S7916]]
attacks on the Court from sitting Federal judges damage the public's
faith and confidence in our judicial system. When judges call the
legitimacy of their own branch of government into question, they erode
the faith of the institution itself.
My colleague, the chairman of the Committee on the Judiciary in the
House of Representatives, shares these concerns. Together, we sent a
letter of concern to Chief Justice Roberts. We expressed our concern
that the conduct of the judges, as reported, may violate the applicable
ethical canons. We also asked whether the judicial branch will give
guidance to Federal judges or even investigate this matter.
The document called the Code of Conduct for U.S. Judges is very clear
that judges have an obligation to uphold public confidence in the
judiciary. For example, canon 2 states:
[A judge] . . . should act at all times in a manner that
promotes public confidence in the integrity and impartiality
of the judiciary.
In 2024, Chief Judge Diaz of the Fourth Circuit applied the canon in
resolving a judicial complaint against a judge for authoring an opinion
piece lambasting a sitting Supreme Court Justice. He concluded that the
judge in question violated the canons and ``diminish[ed] the public
confidence in the integrity and independence of the federal
judiciary.'' Chief Judge Diaz's reasoning appears to apply with similar
force to the recent anonymous attacks on the Court.
Anonymous public comments from sitting judges describing the
relationship between the Supreme Court and lower courts as a ``war
zone'' and otherwise attacking the legitimacy of the Supreme Court
rulings undermine public confidence in the integrity and impartiality
of the judiciary. In fact, it may violate the Code of Conduct.
Judges shouldn't mimic the infighting and rhetorical attacks that are
so common among us in the political arena. This damages the public's
faith in the judiciary.
The Supreme Court is a uniquely American institution that has played
an important role since our Republic's founding. In contrast to the
other branches--meaning the political branches of the Federal
Government--the Supreme Court is meant to stand above the day-to-day
squabbles of politics. And that is not just the Supreme Court, as I
implied; that is every level of the judicial branch. For the most part,
the Court does this remarkably well--speaking of the Supreme Court. We
know this because neither Democrats nor Republicans are always happy
with the decision of our highest Court. The Court is either too
conservative or too liberal, depending on the day and whom you ask. But
at the bottom, the job of the Court is not to please us or agree with
us but to say what the law is.
In recent years, we have seen vicious attacks against the Court from
a variety of directions, many aimed at weakening public confidence in
this important institution. This is bad for all of us. So today, I am
here to defend the integrity of the Supreme Court and to urge the
judicial branch to address these attacks that are coming from within--
mostly by district court judges--and the ones that reply to everything
anonymously and really don't have the guts to stand up publicly with
their criticism of the Supreme Court.
So here is my bottom line: I call on the Federal judiciary to give
clear guidance to Federal judges on acceptable public commentary and to
take seriously the public's perception and confidence in the courts.
I yield the floor.
Ms. ERNST. Mr. President, I ask unanimous consent to begin the next
vote.
The PRESIDING OFFICER (Mr. Banks). Without objection, it is so
ordered.