Floor Speech

Date: May 4, 2022
Location: Washington, DC


Mr. CORNYN. Mr. President, just a couple of days ago, we witnessed an unprecedented attack on the independence and integrity of the U.S. Supreme Court, a third coequal branch of government, when some reporters got their hands on a nearly 3-month-old draft of an opinion, setting off a political firestorm, creating a lot of confusion, more than a little hysteria. And all of which is, frankly, beside the point because the Court actually hasn't decided anything.

But this was a stunning breach of confidentiality for an institution that relies on a private, confidential deliberative process.

The Supreme Court was designed to operate, as is our judiciary, free of political and other outside influence and interference. That is why Justices are not elected; they are nominated and confirmed to serve life terms. That is why they don't have term limits. That is why you can't reduce their salary while they are in office, to make sure that politics and outside opinions have nothing to do with the way they do their job because, of course, their job is a limited but important job of saying what the law is, not making it up, not being a policy maker, but saying what the law is.

It is absolutely critical to our form of government and to our separated powers and our three branches of government that the Supreme Court be protected from pressure campaigns from anyone--politicians, political activists. Anyone. But that is exactly what is happening right now, and many of our colleagues on the other side of the aisle are fanning the flames. And they know that this is not a final opinion, but they see a political opportunity to fan the flames of hysteria and mislead the American people about exactly what this all means and what the consequences are.

For example, in the wake of this news, the Democratic leader of the Senate and the Speaker of the House released a statement--an unconscionable statement, in my view. They called it an abomination, one of the worst and most damaging decisions in modern history and one that defiled the Supreme Court's reputation.

That is what they say about a nondecision, a nonjudgment, about a leaked, 3-month-old draft.

We have no idea how the Court will ultimately decide the case, but this was a political opportunity that the Speaker and the majority leader could not resist.

Frankly, I think it is because they would like to change the subject.

The American people's concerns, if you ask them--as public opinion pollsters have--what they are concerned about, they said they are concerned about inflation, they are concerned about crime, they are concerned about the border, they are concerned about the war, the Russian invasion of Ukraine. But this is a grand opportunity to change the subject and to mislead the American people.

For some reason, the Senate majority leader, Senator Schumer, and Speaker Pelosi did not criticize the person who actually leaked the opinion, the person who committed a frontal assault on the independence of our judiciary, the Supreme Court.

One of the most powerful institutions in our country experiences an unprecedented breach of confidentiality, and what do our Democratic colleagues, the Speaker and the majority leader, do? They attack the Justices. They attack the Court. They don't attack the leaker, the person who committed this egregious breach of confidentiality.

Nowhere in their joint statement did they even mention the leak or leaker, or reaffirm the importance of an independent judiciary.

No, they took the opportunity to slam the Justices, who have not yet decided the case.

Unfortunately, this is nothing new. In 2019, the Democratic leader went to the Supreme Court steps and threatened two Supreme Court Justices by name if they did not rule in a certain way.

He said:

You have released the whirlwind, and you will pay the price. You won't know what hit you if you go forward with these awful decisions.

That is our colleague, the senior Senator from New York, the majority leader of the Senate. He threatened two sitting Justices with retribution should they rule in a way he disagreed with.

The top Senate Democrat lobbing threats at Supreme Court Justices is a dangerous, dangerous model for the American people. This is the branch of government that is supposed to be kept free from those pressures and those sorts of threats, that kind of intimidation, or at least attempts at intimidation.

But, here again, the Senator from New York and the Speaker of the House, they know that, but they did it anyway.

It doesn't matter what case is before the Supreme Court or what ruling is ultimately handed down, leaders of Congress, some of the highest elected officials in the U.S. Government, should be a better example and defend the important principle of judicial independence.

Justice Scalia, in one of his speeches that I read a few years back, talked about what is unique about our system of government, and he said it is the independence of the judiciary, which are the crown jewels. He said, you read the Constitution of the old Soviet Union or any one of a number of other countries, they may have a fine written document that pledges allegiance to certain high-minded values, many of which are contained in our Constitution, but they are just words on a paper.

He said what is different in the United States of America is the independence of the judiciary, who will call balls and strikes and who will ultimately decide some of the most contentious and disputed issues in our country based on the Constitution and laws of the United States, not because they took a public opinion poll to see what was more popular or they were threatened with retribution by some politician.

Unfortunately, our Democratic colleagues and, in particular, their leaders have taken a dangerous approach, and they are not just taking aim at individual Justices; they want to undermine the entire institution of the independent judiciary, particularly the Supreme Court.

A few years ago, five of our colleagues on the Democratic side, including the current chairman of the Senate Judiciary Committee, filed an amicus brief--a friend of the court brief--in a case involving gun rights. These Senators made a not-so-subtle threat that unless the Court ruled in a particular way, the entire institution would be, in their words, ``restructured.'' That is nothing more, nothing less than a simple effort to coerce the Justices into deciding a case in a particular way; to threaten them that unless you go our way, the Court will be restructured.

Well, we know that those weren't just idle words, given some of the threats to pack the Court by adding additional Justices to the Court. We heard that threat of Court packing many times. That was one of the agenda items should our Democratic colleagues eliminate the filibuster, the requirement of 60 votes before you close off debate in the Senate. They said they were going to pack the Court. Many of the presidential hopefuls embraced that idea in 2020, and the latest news has it that a number of Democrats are bringing this idea back to center stage. Disagree with what you think the Court might ultimately decide, and we are going to restructure it. We are going to pack it until we get the result that we want. Kiss an independent judiciary goodbye--the crown jewels of our system of government.

Earlier this week, the junior Senator from Massachusetts called the Supreme Court's current majority ``stolen, illegitimate, and far- right.'' These are Justices who were confirmed by the U.S. Senate. It is dangerous and dishonest to suggest that any of their positions are anything less than consistent with the law and the Constitution.

Our colleague went on to say that the Supreme Court should be ``expanded.'' That is another way of saying they should pack the Court with like-minded policymakers. Well, whether you talk about expanding the Court or packing the Court, the result is the same. It is just another effort to try to politicize this independent branch of government--this independent judiciary--which, as I said and will say again, are the crown jewels of our system of government, an independent judiciary.

Well, even Joe Biden knows that is a boneheaded idea. The reason I know that and we know that is because that is what he said in 1983. He called Court packing a ``boneheaded idea.''

Justice Ginsburg was asked about it. She said ``nine seems to be a good number.'' That was her gentle way of saying that if you start adding Justices to the Court or restructuring or packing the Court, basically, you are in pursuit of a political outcome and you undermine the independence of the judiciary and they are transformed into something far different than what our Founding Fathers believed it would be, which is an institution that would decide legal disputes, whether they be constitutional or otherwise, and would be depended on by the American people to present fair opportunities for all sides to be heard and then an outcome that was not tainted by bias or politics or policymaking.

As Justice Breyer has said, the very authority that the Court has depends on ``a trust that the court is guided by legal principle, not politics'' and that these types of changes--packing, restructuring, whatever you want to call it--he said would erode that trust, undermine the public's confidence and trust in the Supreme Court.

But as we have seen the last few days since this draft opinion was leaked in an egregious breach of confidentiality, our friends across the aisle don't want impartial judges. They don't want an independent judiciary. They want judges who will deliver a particular outcome in a case. They want the Court to be an extension of their politics here in the Senate.

Well, politics has its place, but its place is right here and in the White House, where the voters get to vote for us or vote against us every 2 years or 6 years, as the case may be--or 4 years, in the case of the President.

I understand that our colleagues want a specific ruling on abortion rights. Tomorrow, it could be Second Amendment rights. The next day, it might involve the means by which we run our elections. This entire episode highlights just how far the radicals in the other party are willing to go to try to get their way. They don't care about the long- term best interests of the country. They don't care about an independent judiciary. They are looking for an opportunity to score political points and distract the American people from what they are really concerned about, which is their ability to put food on the table and support their families.

The reason why our Founders designed a Federal Government with three separate but equal branches is because they thought the checks and balances that the three branches would impose would be protective of their liberty. And when one branch goes too far, another branch can be a check and a balance on that and, ultimately, the Supreme Court could be the final arbiter on the constitutionality or the legality of what the other branches are trying to do.

But our colleagues across the aisle--by their irresponsible rhetoric undermining public confidence in the Court, jeopardizing the independence of the judiciary--are blurring the lines between the political process and the judicial branch's responsibility. And why? For partisan political gain.

An independent judiciary is essential to our democracy. The parties whose cases are being decided by the Court should never have to worry about outside influencers or whether politics plays into the decision- making process.

How would you feel if you had a case before the U.S. Supreme Court and you knew that your opposing party tried to pressure or coerce or persuade the judge to arrive at a certain outcome regardless of the law or facts? Well, that would be the opposite of an impartial tribunal and independent judiciary; but that is exactly what our Democratic colleagues are trying to do with the U.S. Supreme Court in this instance.

Americans have a constitutional right to due process of law and that precludes any attempt to influence or obstruct an independent judiciary for making a decision in an individual case. I would like to see more of our colleagues on the other side of the aisle fight to protect the integrity and independence of the judiciary. But if they won't, then we will.

One thing is for certain. As Chief Justice Roberts said, the Court needs to get to the bottom of how this draft opinion got into the hands of the press in an unprecedented and egregious breach of confidence. The Supreme Court Chief Justice Roberts has directed the Marshal of the Court to investigate the source of this leak and once that happens, the person responsible will be held accountable. It is a very tight-knit group of people who have access to these draft opinions.

I have every confidence the Marshal of the Court will find the person who leaked this opinion to the press, and they will be held accountable in what will undoubtedly be a life-changing consequence, particularly if it is a law clerk or someone who is working for the Court. It will be a career-ending mistake.

But this is, first and foremost, a matter of protecting the integrity and independence of the judiciary from any force, external or internal, that seeks to chip away at the Court's independence.