[Congressional Record (Bound Edition), Volume 146 (2000), Part 12]
[Senate]
[Pages 16681-16686]
[From the U.S. Government Publishing Office, www.gpo.gov]



                   CONGRESS AND THE FEDERAL JUDICIARY

  Mr. LEAHY. Mr. President, I want to turn now to another issue. This 
time last year, I rose to express concern about the final decisions of 
the Supreme Court's 1998 Term, in which it struck down on federalism 
grounds three important pieces of bipartisan legislation. Another 
Supreme Court Term has now ended, and this Term's victims include the 
Violence Against Women Act and, as applied to State employees, the Age 
Discrimination in Employment Act.
  I see my distinguished friend from Delaware in the Chamber, and I 
know he has spoken extensively on this. I believe it bears repeating.
  We have seen a growing trend of judicial second-guessing of 
congressional policy decisions, both in the Supreme Court and in some 
of the lower Federal courts. Most troubling to me is the encroachment 
of the Federal judiciary on the legitimate functions of the Federal 
legislative branch in matters that are perceived by the courts to 
impact the States.
  We ought to all be concerned about this because it affects our 
constitutional system of checks and balances. We ought to ask ourselves 
how we can have a situation where an unelected group of Supreme Court 
Justices can over and over substitute their judgment for the judgment 
of the elected representatives of this country.
  It is not a question of how we feel about an individual case. 
Sometimes I vote for these bills and sometimes I vote against them. But 
when we have held hearings, when we have determined that there is a 
need for Federal legislation, when we have gone forward, and then in an 
almost cavalier and, in some cases, disdainful fashion, the Supreme 
Court knocks it all down, something is wrong. It is time for us to join 
together in taking stock of the relationship between Congress and the 
courts.
  According to a recent article by Stuart Taylor, the Rehnquist Court 
has struck down about two dozen congressional enactments in the last 
five terms. That is about five per year--a stunning pace. To put that 
in perspective, consider that the Supreme Court struck down a total of 
128 Federal statutes during its first 200 years. That is less than one 
per year, and it includes the years of the so-called ``activist'' 
Warren Court.

[[Page 16682]]

  Justice Scalia recently admitted that the Rehnquist Court is 
``striking down as many Federal statutes from year to year as the 
Warren Court at its peak.'' In fact, the Rehnquist Court, with its 
seven Republican-appointed Justices, is striking down Federal statutes 
almost as fast as this Republican Congress can enact them. These cases 
evidence a breakdown of respect between the judiciary and legislative 
branches, and raise serious concerns about whether the Court has 
embarked on a program of judicial activism under the rubric of 
protecting State sovereignty.
  Let me start where I left off a year ago, with the trio of 5-4 
decisions that ended the Court's last Term. In the Florida Prepaid 
case, the Court held that the States could no longer be held liable for 
infringing a Federal patent. In the College Savings Bank case, the 
Court held that the States could no longer be held liable for violating 
the Federal law against false advertising. And in Alden v. Maine, the 
Court held that the States could no longer be held liable for violating 
the Federally-protected right of their employees to get paid for 
overtime work.
  These decisions were sweeping in their breadth. They allowed special 
immunities not just to essential organs of State government, but also 
to a wide-range of State-funded or State-controlled entities and 
commercial ventures. They tilted the playing field by leaving 
institutions like the University of California entitled to benefit from 
Federal intellectual property laws, but immune from enforcement if they 
violate those same laws. They were also startling in their reasoning, 
casting aside the text of the Constitution, inferring broad immunities 
from abstract generalizations about federalism, and second-guessing 
Congress' reasoned judgment about the need for national remedial 
legislation.
  When I discussed these decisions last year, I warned that they could 
endanger a wide range of other Federally-protected rights, including 
rights to a minimum wage, rights against certain forms of 
discrimination, and whatever rights we might one day provide to health 
coverage. This year's crop of 5-to-4 decisions continued the trend 
toward restricting individual rights and diminishing the authority of 
Congress to act on behalf of all Americans in favor of protecting State 
prerogatives.
  The predictions I made last year have unfortunately come to pass with 
this year's Supreme Court decisions. In Kimel v. Florida Board of 
Regents, the Court held that State employees are not protected by the 
Federal law banning age discrimination, notwithstanding Congress' 
clearly expressed intent. Five members of the Court decided that age 
discrimination protections applied to the States were unnecessary. The 
Congress and the American people had it wrong when we concluded that 
age discrimination by State employers was a problem that needed a 
solution. None of those five Justices sat in on the hearings that 
Congress held 30 years ago, they did not hear the victims of age 
discrimination describe their experiences, but they nonetheless decided 
they knew better than Congress did. Justice Thomas wrote separately to 
say that he was prepared to go even further and make it even harder for 
Congress to apply anti-discrimination laws to the States.
  The Kimel decision could spell trouble for all sorts of Federal laws, 
including other laws prohibiting discrimination in the workplace and 
regulating wages and hours and health and safety standards. The Supreme 
Court majority has now told us, after the fact, that we in Congress 
have to ``build a record,'' like an administrative agency, before they 
will allow us to protect State employees from discrimination, but it 
has not made it entirely clear just how many victims of discrimination 
have to come before us and testify before it will allow us to give them 
legislative protection.
  The signs, however, are ominous: the week after it decided Kimel, the 
Court vacated two lower court decisions holding that States must abide 
by the Equal Pay Act, calling into question the ability of Congress to 
offer State employees protection from sex discrimination. Next Term, in 
University of Alabama v. Garrett, the Court will decide whether States 
can be held liable for discriminating against employees with 
disabilities. That plaintiff in Garrett is a State employee--a nurse at 
the University of Alabama--who was diagnosed with breast cancer, and 
was demoted after taking sick leave to undergo surgery and 
chemotherapy.
  The second blow this Term to congressional authority was United 
States v. Morrison, which struck down a portion of the Violence Against 
Women Act that provides a Federal remedy for victims of sexual assault 
and violence. The Violence Against Women Act had been our measured 
response to the horrifying effects of violence on women's lives 
nationwide, not only on their physical well-being but also on their 
ability to carry on their lives and their jobs as they are driven into 
hiding by stalking and prevented from going out at night in some areas 
by fear of rape. After hearing a mountain of evidence detailing the 
impact of violence on women's lives and interstate commerce, I was 
proud to work with Senator Biden, Senator Hatch, Senator Kennedy and 
others in an overwhelming bipartisan consensus in 1994 to enact VAWA.
  But the five-Justice majority was unimpressed with the evidence, and 
with the common-sense point that violence affects women's lives, 
including their participation in commerce. Relying once again on 
abstract notions of federalism, the Court decided that violence against 
women does not affect interstate commerce enough, or rather, it affects 
interstate commerce, but in the wrong sort of way, so Congress has no 
business protecting American women from violence. One Justice said he 
would cut even more into Congress' power, saying we had very little 
business doing much of what we had done throughout the 20th century. 
Frankly, I do not want to see us turn back, in the 21st century, to a 
19th century view.
  What made this latest ``federalism'' decision all the more remarkable 
is that the vast majority of the States, whose rights the Court's 
``federalism'' decision are supposed to protect, had urged the Court to 
uphold the VAWA Federal remedy.
  The Kimel and Morrison decisions are troubling, both for what they do 
to the rights of ordinary Americans, and for what they say about the 
relationship between Congress and the present majority of the Supreme 
Court. State's rights and individual rights are both essential to our 
constitutional scheme, and the Court has a constitutional duty to 
prevent the Congress from encroaching on them. I have spoken before 
about the need to restrain the congressional impulse to federalize more 
local crimes. There are significant policy downsides to such 
federalization, however, that do not apply in other areas, where each 
American, no matter what State he or she lives in, should have the same 
rights and protections.
  The legislative judgments we make that are reflected in the laws we 
pass deserve more respect than the Rehnquist Court has shown. It is 
troubling when five unelected Justices repeatedly second-guess our 
collective judgments as to whether discrimination and violence against 
women and other major social problems are serious enough, or affect 
commerce in the right sort of way, to merit a legislative response.
  It is even more troubling when a Justice steps out of his judicial 
role, and beyond the judgment calls inherent in individual cases, to 
express a generalized disdain for the legislative branch. Yet, that is 
precisely what Justice Scalia did in a recent speech, in which he 
suggested that the oath to uphold the Constitution that each of us 
takes counts for nothing, and that Acts of Congress should be stripped 
of their traditional presumption of constitutionality. Justice Scalia 
is as free as the next citizen to express his mind, but that sort of 
open disrespect for Congress coming from a sitting Supreme Court 
Justice bodes ill for democracy, and for the delicate balance of power 
between the Congress, the President and the courts on which our 
Constitution rests.
  I am also fearful that Justice Scalia's remarks are becoming a 
rallying cry

[[Page 16683]]

for Federal judges around the country who are hostile to Congress and 
to some of our efforts to protect ordinary people from discrimination, 
from violence, from invasions of privacy and violations of civil 
liberties, and from environmental and other health hazards. The Federal 
appeals court in Richmond, Virginia--the Fourth Circuit--has the 
dubious honor of leading this charge with radical new legal theories 
that cut back on Federal power and individual rights.
  In January, the Supreme Court unanimously reversed a Fourth Circuit 
decision invalidating a Federal law that prohibits States from 
disclosing personal information from motor vehicle records. The Fourth 
Circuit had held that this common-sense privacy law violated abstract 
notions of federalism. As we have seen, it takes a lot to outdo the 
present Supreme Court in raising abstract federalism principles over 
individual rights.
  Also in January, the Supreme Court overwhelmingly rejected the Fourth 
Circuit's reasoning in a case involving citizen ``standing'' in Federal 
court to sue polluters who violate our environmental laws. The Fourth 
Circuit decision had sharply limited the ability of citizens to sue 
polluters and win civil penalties. The Supreme Court reversed that 
decision by a 7-2 vote, with Justice Scalia and Justice Thomas 
dissenting.
  The Fourth Circuit is even more consistently hostile to civil rights 
in matters of criminal law and civil liberties. In death penalty cases, 
for example, it seems to have embraced a doctrine of State 
infallibility. An article in the American Lawyer last month reported 
that:

       While condemned inmates' rates of at least partial success 
     in Federal habeas corpus actions run at close to 40 percent 
     nationally, the rate in the 4th Circuit since October 1995 
     has been a cool 0 percent, with more than 80 consecutive 
     convictions having been upheld.

  In May, a unanimous Supreme Court, a Court that itself espouses the 
general belief that the rights of capital defendants are best protected 
by the State justice system that seeks to execute them, overturned two 
Fourth Circuit decisions that denied habeas corpus relief to death row 
inmates who had been sentenced to death on the basis of grossly unfair 
procedures.
  Just last month, the Fourth Circuit lost its bid to overturn the 
Supreme Court's landmark decision in Miranda v. Arizona. The Fourth 
Circuit's notion that it had the right to overturn a longstanding 
Supreme Court precedent was unorthodox, to say the least. By a 7-2 
vote, in which Justices Scalia and Thomas dissented again, the Court 
reaffirmed the 34-year-old precedent that requires the police to inform 
suspects of their right to remain silent.
  What we are seeing in the Fourth Circuit is unparalleled, but not 
unrivaled. Other Federal courts across the country are also embracing 
Justice Scalia's ``no-deference'' philosophy and busily redefining the 
relationship of the judiciary to the other branches of government. The 
D.C. Circuit departed from a half century of Supreme Court separation-
of-powers jurisprudence to strike down air quality standards 
established by the EPA under the Clean Air Act, a crucial statute 
passed during the Nixon administration that has improved the air we 
breath for the last three decades. Meanwhile, in a striking throw-back 
to the Lochner era of economic libertarian ``natural law'' theory, the 
Federal Circuit has adopted an unusually expansive reading of the 
Takings Clause that threatens to undermine basic environmental 
protections that Congress has established. Likewise, Federal district 
courts in Texas have recently rendered radical decisions, limiting the 
Federal Government's authority to enforce basic food safety standards.
  Republican detractors of the Ninth Circuit often refer to that 
court's high reversal rate in the Supreme Court. But about half of the 
Ninth Circuit decisions that the Supreme Court reversed this year were 
written by Reagan and Bush appointees. Moreover, set against the 
reversal record of other circuits, the Ninth Circuit, which has the 
largest caseload of all the Federal appeals courts, looks about 
average. Courts with half or a third of the caseload of the Ninth 
Circuit have more than their share of reversals. The Fourth Circuit was 
reversed five times this year, as was the Fifth Circuit. The 
overwhelmingly Republican-appointed judges of the Seventh Circuit were 
reversed in five out of seven cases this year.
  I have spoken at some length about this growing trend of judicial 
decisions second-guessing the congressional judgments embodied in laws 
that apply to the States because I am deeply concerned about what they 
mean for the relationship between the judicial and the legislative 
branches and for our democracy. When a Supreme Court Justice, one held 
up by some of my Republican friends as a paragon of judicial restraint, 
declares that no deference, no respect, is owed to the democratic 
decisions of Congress, Americans should be concerned.
  We here in the Senate have a responsibility to safeguard democratic 
values. That does not mean that we should be strident, or 
disrespectful; we should always cherish judicial independence even when 
we dislike the results. We should, however, defend vigorously our 
democratic role as the peoples' elected representatives. When we see 
bipartisan policies, supported by a vast majority of the American 
people, being overturned time and time again on the basis of abstract 
notions of federalism, it is our right, and our duty, to voice our 
concerns. And when the rights of ordinary Americans are defeated by 
technicalities in the courts and by abstract notions of ``State's 
rights'' that the States themselves do not support, it is our 
responsibility to work together to find new ways to protect them.
  I have tried to do that. A year ago, I voiced my concerns about the 
Supreme Court's 1999 State sovereign immunity decisions, as did some of 
my colleagues, including Senator Biden and Senator Specter. I warned 
then of their potential impacts on the civil rights of American 
workers. As we have seen, my fears became a disturbing reality in the 
Kimel case. I have also tried to begin work on restoring the integrity 
of our national intellectual property system, in the Intellectual 
Property Protection Restoration Act, S. 1835, a bill I introduced last 
October. That bill would restore intellectual property protections 
while meeting all the Court's constitutional objections, however 
questionable they are. I am delighted that a subcommittee of the House 
Judiciary Committee held a hearing today to explore ways to undo the 
damage done to our intellectual property system by the Court's 1999 
decisions. I hope that the Senate Judiciary Committee will consider and 
act on this important issue, which it has ignored all year.
  These are issues we should all be working on together. Republicans 
and Democrats can agree on the importance of protecting civil rights, 
intellectual property rights, privacy and other rights of ordinary 
Americans that recent doctrinaire judicial decisions have impaired. We 
can also agree on the importance of protecting Congress as an 
institution from repeated judicial second-guessing of policy judgments 
on matters that affect the States.
  It is important for Congress, as an institution, to focus on making 
our relationship with the Federal judiciary a more constructive and 
mutually respectful one. Here in the Senate, where the Constitution 
requires us to give our ``advice and consent'' on judicial nominations, 
we have a special responsibility in this regard, a responsibility to 
protect both democratic values and judicial independence. The 
disgraceful manner in which the Senate has treated judicial nominees 
does not help and may be a factor in the current breakdown of respect 
between the legislative and judicial branches.
  Too often, judicial nominees have been put through a litmus test by 
my Republican colleagues to determine whether they will engage in 
``liberal judicial activism.'' In fact, I cannot remember a recent 
judicial nomination hearing in which one of my Republican friends has 
not made a speech about ``liberal activist judges.'' Strangely, 
however, hardly a mention is made of

[[Page 16684]]

traditional judicial activism--striking down democratically-adopted 
laws with which one happens to disagree based on abstract principles 
with no basis in the Constitution, as the Supreme Court did in the age 
discrimination case, or overturning the long-standing precedent of a 
higher court, as the Fourth Circuit did in the Miranda case. Nor do my 
colleagues seem troubled by Justice Scalia's disdain for Congress. But 
I know that my Republican friends are very concerned about ``liberal 
judicial activism.'' The terms of this test change depending on the 
circumstances.
  From what I can gather, the easiest way to spot ``liberal judicial 
activists'' is by the company they keep. You might call it the 
``activist by association'' principle. Over the last few years, several 
outstanding judicial nominees have come under attack simply because, as 
young lawyers out of law school, they clerked for Supreme Court Justice 
William Brennan. These nominees were tarred as potential activists not 
because of anything they had done, but because of their one-year 
association with a distinguished and respected member of the United 
States Supreme Court. This test is applied only to delay or oppose 
nominees--clerking for a conservative justice like Chief Justice 
Rehnquist has not helped Allen Snyder, a nominee to a vacancy on the 
D.C. Circuit who has been held up in Committee for months. Maybe 
someone should send a warning to the students at the Nation's top law 
schools that the Senate has become so partisan that clerking for the 
Supreme Court can damage your career.
  Other nominees were challenged because of their association with 
legal organizations such as the American Civil Liberties Union and the 
Woman's Legal Defense Fund or for contributing time to pro bono 
activities. Maybe we should publish a list of groups you cannot 
associate with, and of rights and liberties you cannot work to protect 
in your private life, if you want to be a Federal judge.
  How else can we tell if a nominee will be a ``liberal judicial 
activist''? In the case of Margaret Morrow, it was unfounded 
allegations that she was skeptical toward California voter initiatives. 
With respect to Marsha Berzon we were told that she would be an 
activist judge because she had been an ``aggressive'' advocate for her 
client, the AFL-CIO. Maybe we should advise lawyers in private practice 
who would like to be judges to be less vigorous in pursuing their 
clients' interests. Of course, since their confirmations neither of 
these nominees has been cited to be anything other than an outstanding 
judge.
  Then there is the old-fashioned litmus test. As a member of the 
Missouri Supreme Court, Justice White had committed the heresy of 
voting to reverse death sentences in some cases for serious legal 
error. No matter that Justice White voted to uphold the imposition of 
the death penalty 41 times. No matter that other members of the 
Missouri Supreme Court, including members of the Court appointed by 
Republican governors, had similar voting records and more often than 
not agreed with Justice White, both when he voted to uphold the death 
penalty and when he joined with a majority of that Court to reverse and 
remand such cases for resentencing or a new trial. Maybe someone should 
have advised Justice White to follow the Fourth Circuit model and bat a 
thousand for the State in death penalty cases, regardless of the 
evidence.
  Another litmus test that has been dressed up as a sign of ``liberal 
judicial activism'': The nominee's willingness to enforce Roe v. Wade, 
the Supreme Court's landmark abortion decision. I confess to some 
confusion as to how a nominee for a lower Federal court could be 
faulted for promising to adhere to established Supreme Court precedent. 
Whether you agree with Roe or not, it is, after all, the law of the 
land. But maybe someone should advise lower court judges to follow the 
lead of the Fourth Circuit in the Miranda case and disregard Supreme 
Court precedent.
  We need to get away from rhetoric and litmus tests, and focus on 
rebuilding a constructive relationship between Congress and the courts. 
We need balance and moderation that respects the democratic will and 
the weight of precedent. We do not need partisan delays by anonymous 
Senators because a nominee clerked for Justice Brennan or contributed 
to the legal services organization. We do not need our Federal courts 
further packed for ideological purity. We do not need nominees put on 
hold for years, as this Republican Senate has done, while we screen 
them for their Republican sympathies and associations.
  Mr. President, I ask unanimous consent to have printed in the Record 
three recent articles about the Supreme Court's jurisprudential 
counterrevolution, by Professor Larry Kramer of the New York University 
School of Law; Professor David Cole of Georgetown University Law 
Center; and John Echeverria, Director of Environmental Policy Project 
at Georgetown University Law Center.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, May 23, 2000]

                       The Arrogance of the Court

                           (By Larry Kramer)

       In 1994, after four years of very public debate, including 
     testimony from hundreds of experts in dozens of hearings, 
     Congress enacted the Violence Against Women Act. This month, 
     a bare 5 to 4 majority of the Supreme Court brushed all that 
     aside and struck the law down. Why? Not because Congress 
     cannot regulate intrastate matters that ``affect'' interstate 
     commerce. On the contrary, the majority agreed that this is 
     permitted by the Constitution, reaffirming a long-standing 
     point of law. But, the court said, whether the effects are 
     ``substantial'' enough to warrant federal regulation ``is 
     ultimately a judicial rather than a legislative question, and 
     can be settled finally only by this Court.'' And the majority 
     just was not persuaded.
       This is an astonishing ruling from a court that professes 
     to care about democratic majorities and respect the political 
     process. The justices did much more in this decision than 
     sweep the act off the books. Under a pretense of interpreting 
     the Constitution, they declared that they have the final say 
     about the expediency of an important, and potentially very 
     large, class of federal laws: not just laws under the 
     Commerce Power, which constitute the bulk of modern federal 
     legislation, but many other laws as well. For the limits of 
     all Congress's powers turn eventually on judgments about the 
     need for federal action.
       This is radical stuff. Previous courts have exercised 
     aggressive judicial review, but never like this. Nothing in 
     the Constitution's language or history supports letting the 
     Supreme Court strike down laws just because it disagrees with 
     Congress's assessment of how much they are needed. Except for 
     a brief period in the 1930s when an earlier court tried to 
     stop FDR's New Deal and was decisively repudiated, the 
     court's role has always ended once it was clear that 
     legislation was rationally related to the exercise of a 
     constitutional power. As Alexander Hamilton observed back in 
     1792, rejecting the very same argument as that made by the 
     court today, ``the degree in which a measure is necessary can 
     never be a test of the legal right to adopt it.''
       The Founding generation understood, in a way our generation 
     seems to have forgotten, that judicial review must be 
     contained or we lose the essence of self-government. They saw 
     that, while courts have a vital role to play in protecting 
     individuals and minorities from laws that trample their 
     rights, Congress's decisions respecting the need to exercise 
     its legislative power must otherwise be left to voters and 
     elections. They foresaw that questions would arise over the 
     limits of federal authority vis-a-vis the states. But, they 
     said (over and over again), those battles must be waged in 
     the political arena. And so they have been, until now.
       What kind of government is it when five justices of the 
     Supreme Court, appointed for life by presidents whose 
     mandates expired long ago, can cavalierly override the 
     decision of a democratically elected legislature not on the 
     ground that it acted irrationally but because they do not 
     like its reasoning? By what right do these judges claim the 
     authority to second-guess what Justice Souter in dissent 
     accurately described as a ``mountain of data'' based on 
     nothing more than their contrary intuitions?
       This is important. We have become way too complacent about 
     letting the Supreme Court run our lives, and the current 
     court has exploited this apathy to extend its authority to 
     unheard of lengths. Everyone in the country should be 
     incensed by this decision; not because the Violence Against 
     Women Act was so wonderful or so necessary, but because 
     deciding that it is not--and make no mistake, that is all the 
     majority did--is none of the Supreme Court's business. Yet 
     liberals will sit awkwardly by because they liked the 
     judicial activism we got

[[Page 16685]]

     from the Warren court, though that court could not touch this 
     one for activism. And, of course, conservatives will 
     gleefully hold their tongues because they never much liked 
     this law in the first place, and because they adore the 
     court's new federalism (not to mention the chance to see 
     liberals hoist by their own petard). In the meantime, only 
     democratic government suffers. Ironies this thick would be 
     comical were the stakes not so high.
       The majority opinion is animated by a sense that the 
     Framers of our Constitution never imagined the federal 
     government enacting laws such as the violence act. I am sure 
     they are right; the Framers would be astounded at the changes 
     in society that have brought us to this juncture. But nowhere 
     near as flabbergasted as they would be at the 
     presumptuousness of five judges in casting aside the 
     considered judgment of the national legislature for no better 
     reasons than these--or at the complacency of the citizenry in 
     the face of such outrageous conduct.
                                  ____


                    [From The Nation, June 12, 2000]

                           Paper Federalists

                            (By David Cole)

       When conservatives attack Supreme Court decisions 
     (admittedly an increasingly rare event these days), they 
     inevitably charge ``judicial activism.'' Miranda warnings, 
     the right to abortion, the exclusionary rule--all are 
     condemned for having been created by judges out of whole 
     cloth, based on ``interpretations'' of the Constitution that 
     are so unconstrained as to be entirely political.
       When it comes to ``states' rights,'' however, conservatives 
     sing a different tune. In the past few years, the 
     conservative majority on the Supreme Court has launched a 
     virtual revolution in constitutional jurisprudence, 
     invalidating a host of federal laws on the ground that they 
     violate the autonomy not of human beings but of states. The 
     Court has revived the commerce clause as a limitation on 
     federal power after some fifty-odd years of desuetude. It has 
     found implicit in the Constitution a concept of ``state 
     sovereign immunity'' that jeopardizes Congress's ability to 
     require states to follow federal law. And it has divined from 
     the ``spirit'' of the inscrutable Tenth Amendment a principle 
     of state autonomy with little textual or historical basis. In 
     doing these things, the Court's most conservative Justices--
     Rehnquist, Scalia, Kennedy, O'Connor and Thomas--have engaged 
     in the very sort of open-ended, freewheeling constitutional 
     interpretation that they excoriate liberals for indulging in 
     on issues of individual rights.
       This Court's activism on federalism begins with the 
     commerce clause, which for most of our history has been the 
     leading barometer of judicial attitudes toward the balance 
     between state and federal power. In the early part of the 
     twentieth century the Court frequently invoked the clause to 
     strike down labor laws regulating minimum wages, maximum 
     hours and working conditions. The Court reasoned that 
     Congress could regulate only ``commerce,'' not manufacturing 
     or production, although its actual animating principle was a 
     commitment to laissez-faire capitalism.
       During the New Deal, the Court abandoned this approach and 
     acknowledged that in our increasingly national economy, the 
     terms of production--such as wages, hours and working 
     conditions--obviously affect interstate commerce. It 
     ultimately interpreted the commerce clause to permit Congress 
     to regulate any local activity that, aggregated nationally, 
     might substantially affect interstate trade, a reading that 
     largely took the judiciary out of the job of restraining 
     Congress and relied on the political process to do so.
       That's where things stood until 1995, when the Court struck 
     down a federal law prohibiting the possession of guns near 
     schools. Then, on May 15, the Court invalidated the Violence 
     Against Women Act, a federal law enabling victims of gender-
     motivated violence to sue their attackers. In both cases the 
     Court held that Congress may not regulate local 
     ``noneconomic'' activity. Neither gun possession nor gender-
     motivated violence is ``economic'' activity and must be left 
     to the states to regulate. Congress's findings that violence 
     against women reduces their ability to participate in the 
     work force was insufficient to justify federal regulation. 
     But if Congress has the power to regulate conduct where it 
     ``affects'' interstate commerce, why should it matter whether 
     the conduct itself is labeled ``economic'' or 
     ``noneconomic''? The Court seems to have created a 
     distinction every bit as artificial as the long-rejected line 
     between production and commerce.
       The Court's activism is even more pronounced in its 
     treatment of ``state sovereign immunity,'' the doctrine that 
     the sovereign--in this case a state--may not be sued. The 
     Eleventh Amendment to the Constitution does recognize a very 
     limited immunity that protects states from being sued by 
     citizens of other states in federal court, at least for cases 
     not based on federal law violations. But today's Court has 
     ignored the explicit language of the amendment to create an 
     expansive immunity that blocks virtually all private suites 
     against states, in state or federal court, under state or 
     federal law. As a result, state employees cannot sue their 
     employer--anywhere--for blatant violations of federal laws, 
     such as the Fair Labor Standards Act. The only exception to 
     this state immunity is where Congress has authorized suits 
     under the Fourteenth Amendment, but the Court has also 
     sharply limited Congress' power to regulate states under that 
     amendment.
       A third arena for the states' rights revival is the Tenth 
     Amendment. That provision has literally no substantive 
     meaning. It states only that all powers not assigned to the 
     federal government are reserved to the states or the people. 
     The Court once dismissed it as ``a truism.'' But in recent 
     years, the conservative majority has found in its ``spirit'' 
     the authority to strike down federal statutes for requiring 
     state officers to carry out even very minimal tasks in 
     furtherance of a federal program, such as the Brady Bill's 
     requirement that local sheriffs conduct brief background 
     checks on would-be gun purchasers.
       So why do states' rights issues drive conservative Justices 
     to abandon their cherished principle of judicial restraint? 
     There is undeniably a conservative cast to federalism in the 
     United States. States' rights have nearly always been invoked 
     in support of rightwing causes, from slavery to segregation 
     to welfare devolution. But no one would seriously suggest 
     that today's Court is using federalism as a cover to protect 
     those who carry guns near schools or rape women.
       What really drives the conservative Justices toward states' 
     rights is their antipathy to individual rights. ``States' 
     rights'' is itself something of an oxymoron; rights generally 
     describe legal claims that people assert against government, 
     not claims of governments. Protecting states' rights nearly 
     always directly reduces protection for individual rights. The 
     Court's sovereign immunity decisions bar individuals from 
     suing states for violating their federal rights. And its 
     commerce clause and Fourteenth Amendment decisions have 
     reduced Congress's ability to create federal statutory rights 
     for individuals in the first place.
       The link between protecting the ``rights'' of states and 
     disregarding those of individuals is illustrated even more 
     clearly in the Rehnquist Court's treatment of habeas corpus 
     and federal injunctions. The Court has consistently cited 
     deference to the states to justify shrinking the rights of 
     state prisoners to go to federal court for review of their 
     constitutional claims. And it has grandly invoked ``Our 
     Federalism'' to limit the ability of federal courts to 
     oversee and enjoin police abuse against minorities.
       Paradoxically, then, this Court is most activist in 
     restricting its own power. The conservative Justices eagerly 
     engage in open-ended constitutional interpretation when the 
     result forecloses an avenue for rights protection but assail 
     their liberal counterparts for doing so when the result is to 
     recognize an individual right. As a result, states receive 
     far more solicitude than individuals. But the opposite should 
     be the case: The Court's highest calling is not the 
     protection of regimes but of individuals who cannot obtain 
     protection from the political process.
                                  ____


        It's Conservatives Now Who Are Judicial Activists: Why 
                  Environmentalists Should Be Alarmed

                          (By John Echeverria)

       Recent federal court decisions concerning our environmental 
     laws cry out for a giant reality check on the recently 
     renewed political debate about whether federal judges should 
     be ``strict constructionists'' when it comes to deciding 
     issues of constitutional law.
       Governor George W. Bush last month revived a familiar GOP 
     mantra when he declared that he would only appoint ``strict 
     constructionists'' as opposed to ``judicial activists'' to 
     the federal bench. This stance echoes similar statements by 
     Bob Dole, the GOP standard bearer three years ago, as well as 
     by paterfamilias George Bush I and the modern GOP's founding 
     father, Ronald Reagan.
       Governor Bush's political declaration has a kind of 
     through-the-looking-glass quality all too familiar in modern 
     American political life. While Bush and others on the 
     political right decry judicial activism, in some arenas of 
     constitutional law, particularly those affecting our 
     environmental laws, it is GOP-appointed judges who are 
     actually the most activist.
       On the other hand, out of a habit of supporting an 
     expansive approach to constitutional interpretation, which 
     apparently served their ideological interests in the past 
     befuddled democratic forces rise to the bait of defending the 
     judiciary against charges of ``judicial activism'' even as 
     their environmental protection gains, achieved through hard-
     fought battles in the political arena, are being taken away 
     by GOP-appointed judicial activists.
       Sensible conversation about the virtues and limitations of 
     a ``strict constructionist'' approach to judicial 
     interpretation calls in the first instances for an accurate 
     understanding of how the federal bench is actually deciding 
     real cases today.
       In simplistic terms, a judge is said to be a ``strict 
     constructionist'' if she resolves constitutional cases solely 
     on the basis of the

[[Page 16686]]

     language and original understanding of the constitutional 
     text. On the other hand, a judge who looks to other sources 
     for interpretive assistance, such as some particular social 
     or economic philosophy, is said to engage in judicial 
     activism.
       Governor Bush left undefined the specific rulings he thinks 
     reflects judicial activism. But similar GOP pronouncements in 
     the past honed in on the U.S. Supreme Court's expansion of 
     the constitutional rights of the criminally accused under the 
     leadership of Chief Justice Earl Warren in the 1950's and 
     60's.
       Another favorite target has been the Court's decision in 
     Roe v. Wade, which interpreted the Constitution to create a 
     zone of privacy granting women the constitutional right to 
     decide whether or not to terminate a pregnancy without state 
     interference.
       Whether or not these (now somewhat dated) judicial 
     innovations can fairly be characterized as the product of an 
     activist judiciary, it is undeniably true that the charge of 
     judicial activism can, with at least equal fairness, be 
     lodged against more recent judicial decisions that serve a 
     so-called ``conservative'' 'philosophy.
       This is particularly true in cases involving constitutional 
     challenges to the authority of government to adopt and 
     enforce environmental regulations. Consider the following 
     examples.
       Over the last decade, the U.S. Supreme Court has issued an 
     unbroken string of decisions expanding public liability under 
     the takings clause of the Fifth Amendment for environmental 
     and land-use regulations that impinge on private property 
     interests, undermining the ability of the government to adopt 
     new environmental protection standards.
       The takings clause states that ``private property [shall 
     not] be taken for public use, without just compensation.'' 
     According to leading scholars on all sides of the ideological 
     spectrum, the available historical evidence unequivocally 
     shows that the drafters of the Bill of Rights intended the 
     clause to apply only to direct appropriations of private 
     property, and never intended the clause to apply to 
     regulations under any circumstances.
       In its recent decisions, however, the Court has established 
     the takings clause as a significant new constraint on 
     environmental regulatory authority. From the standpoint of a 
     principled strict constructionist, this direction in judicial 
     thinking would be simply indefensible.
       The same is true of recent Supreme Court decisions limiting 
     citizens' right to sue to enforce federal health and 
     environmental laws.
       There is a general academic consensus that the drafters of 
     the Constitution intended Congress to have broad power to 
     grant private citizens the right to bring suits in their own 
     names to enforce federal laws. Nevertheless, over the last 
     decade the U.S. Supreme Court, led by Justice Antonin Scalia, 
     has erected new barriers which citizens must cross to 
     establish their right to bring suit to enforce environmental 
     laws.
       The Court's recent decisions for example, have severely 
     undermined the Clean Water Act and the Endangered Species 
     Act, and more particularly the role Congress intended for 
     citizens in enforcing those laws, a result which principled 
     advocate of a non-activist judiciary should supposedly abhor.
       Conservatives living in glass houses might start a move 
     toward a more sensible debate by refraining from hurling 
     rocks in the direction of the federal judiciary. Or perhaps 
     liberals may wish to rethink a strategy based on warding off 
     rocks tossed by others, and may wish to consider hurling a 
     few of their own.

  Mr. LEAHY. Mr. President, I see my good friend from Utah on the 
floor. I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I thank the Senator from Vermont. I am 
looking forward to sharing some ice cream with him a little later today 
in response to his gracious invitation. I appreciate his courtesy.

                          ____________________