Floor Speech

Date: May 5, 2022
Location: Washington, DC


Mr. CORNYN. Mr. President, I know we are used to having a lot going on here in Washington, DC, but this week seems like we have been hit by a whirlwind of activity--a war in Europe, COVID-19 still lingering in parts of the world, and then the Supreme Court found itself the victim of an unauthorized leak of a draft opinion, which has created a lot of furor and anxiety and misinformation.

One of the things that it has demonstrated is the need to protect the independence of the Court.

Justice Antonin Scalia used to say that you can read the constitution and bill of rights of a lot of countries around the world, and they look great on paper. He mentioned that of the old Soviet Union, for example. But he said they are just words on paper without an independent judiciary to enforce them, and he was right.

Whoever leaked this draft document obviously intended to create a lot of public pressure--indeed, coercion--on the sitting Justices to either change their minds or to somehow garner a political issue that they would be able to use to divert the American people's attention from things like inflation, crime, the border, and the challenges to our national security and world peace.

We have to get to the bottom of this, and I am confident that Chief Justice Roberts will pursue that until the person who leaked it is identified and held accountable.

But this spotlight on the Court, along with the reaction--the public reaction that we have seen has raised another important issue, and that is the physical safety and security of the Justices themselves and their families.

In our increasingly polarized climate, the Justices have been villainized and subjected to violent threats. People have even published their home addresses so they can show up and protest on their home, on their property, on their lawns.

This decision, which is actually a nondecision because the Supreme Court hasn't handed down its decision--but the leaker has accomplished his or her goal, I suppose, by creating this hostile environment for the Justices and their families.

But, unfortunately, there are even people in this Chamber who have contributed to that environment.

In 2019, the Democratic leader went to the Supreme Court steps and threatened two Supreme Court Justices by name. He said:

You have released the whirlwind--

By the way, this was the day that the abortion case was argued in the Supreme Court.

The senior Senator from New York, the majority leader, 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.

And he named Justice Gorsuch and Justice Kavanaugh by name.

Now, to have the senior Democrat and Senate majority leader from this Chamber lobbing threats at sitting Justices on the Supreme Court if they did not rule in a way he wished is dangerous.

We have wondered before about the impact of some of the irresponsible rhetoric that occasionally occurs around here on vulnerable minds and people who might be tempted to act based on that incitement, based on that rhetoric. But to have this come from the majority leader himself is just irresponsible.

This is the branch of government, which is supposed to be the adults in the room, to operate in a way that is respectful, even with our differences, and the Supreme Court is the branch that is meant to operate free from public or political pressure.

As Chief Justice Roberts said at the time: ``Justices know that criticism comes with the territory.'' It is a free country. People can express themselves within limits. ``But threatening statements,'' he said, ``of this sort from the highest levels of government are not only inappropriate, they are dangerous,'' he said. Well, Chief Justice Roberts is right, and subsequent events have shown that threats against the Justices aren't going away and are becoming even more intense.

We need to take steps to improve the protection of the Justices and their family against potential violence, and it can't wait until something bad happens. Some political activists have already announced their intentions to go to the private homes of the Justices. This is an appalling violation of their personal privacy. It puts them and their families at risk. We currently have two Justices with school-aged children. Once Judge Jackson joins the Court when Justice Breyer steps down, there will be three.

The Chief Justice has asked Congress to take appropriate action to increase protection for the physical safety of the Justices and their families, and we need to act and act with urgency.

Senator Coons, our friend from Delaware, a Democrat, and I are introducing a bill, a bipartisan bill, obviously, called the Supreme Court Police Parity Act to strengthen security protection for the Justices and their families. This will ensure the Justices receive the same protection and resources that article I and article II officers and their families enjoy. For our present purposes, that means they will be given the same authority that the Capitol Police already have here on Capitol Hill.

I appreciate our friend Senator Coons working with me on this important legislation, and I hope the entire Senate will vote on it soon.

As far as the larger debate about the draft document that was released, it is important to remember we don't actually know what the Supreme Court is going to decide until it actually does decide. The Justices are still working through the deliberative process, and our respect for the independence of the Court requires that we let it proceed without interference.

While tensions and emotions may be high, it is important to note that overruling earlier Supreme Court decisions is nothing new. I looked back and realized it was 1789 when the Supreme Court reversed its first prior decision. Since that time, there have been 232 instances where an earlier Supreme Court decision was overturned. And, I must say, thank goodness the Court is willing, under some limited circumstances, to revisit its earlier decisions.

The Court's decisions overruling earlier precedents in some cases has fundamentally altered major aspects of our society. Without question one of the most notable was Brown v. Board of Education. Now, Brown v. Board of Education was a landmark ruling overruling a case called Plessy v. Ferguson, which established a shameful ``separate but equal'' doctrine between Blacks and Whites in public transportation and public schools. Brown said that is fundamentally discriminatory and will not stand because it doesn't meet the constitutional standards. But it is tough today to imagine what our country would look like had the Supreme Court not reached its decision in Brown nearly 70 years ago. Classrooms, restrooms, water fountains, and even healthcare facilities would be designated by race. I am confident that I can speak for everyone in this Chamber when I say thank goodness the Court overturned Plessy v. Ferguson and reached the ruling that it did in Brown v. Board of Education.

There are more modern examples where the Court overruled precedent, like Lawrence v. Texas was overruled in 2003 by the precedent established by Bowers v. Hardwick, which had made it a crime to be engaged in same-sex conduct. So without a doubt, the Court's decision to overturn its precedents has altered our society, and I suggest it has changed our society for the better in many of those instances.

Now, I realize that given our political and ideological preferences, we might like or dislike the decision that the Court ultimately makes, but former Supreme Court Justice Robert Jackson said years ago that the Supreme Court is not final because it is right; it is right, he said, because it is final.

But there is no such thing as an inviolable decision or permanent decision by the Supreme Court, and again I say thank goodness. If prior decisions were set in stone, we would still be subject to egregious, shameful policies of the past like ``separate but equal.'' But the Supreme Court should always try to correct previously decided erroneous decisions, and they have criteria under the doctrine known as stare decisis for the circumstances under which they will revisit that precedent. The Court understands that they can't willy-nilly overrule earlier decisions, and there is a very elaborate and exacting process and evaluation of analysis by which they do so.

But I believe it is our responsibility here in the Senate not to be part of the mob. Cooler heads must prevail. And that means us. It starts with us. We have to stand for the independence of the Court even when they render decisions we don't like. That is the only way to preserve the crown jewels of our form of government, which is the independent judiciary. The High Court cannot be subjected to pressure campaigns by anyone--elected officials, political activists, or anyone else.