Chuck Grassley

United States Senator from Iowa





Grassley Floor Statement on the Latest Supreme Court Session

Jul 28, 2015

Prepared Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
On the Latest Supreme Court Session
July 28, 2015

Mr. President, there is a misconception that our Supreme Court is conservative.  But in the term that just ended, the Supreme Court upheld a key provision of Obamacare.  It read the plain language of that statute that provided that health insurance subsidies apply only to exchanges established by the states and said that they are available on exchanges created by the federal government.

It ruled that fair housing discrimination cases can be brought even where there is no intent to discriminate.  A harmful impact is enough to bring a case.  

It found that same sex marriages are constitutionally required.

It expanded the reach of the Pregnancy Discrimination Act and made it easier to win cases under that law.

The Court decided that racial gerrymandering cases under Section 5 of the Voting Rights Act must consider the effect on individual districts regardless of minority voting in the state as a whole.  And the Court said as well that in those cases, courts must look beyond the numbers when deciding whether minority voters have been “packed” into districts to dilute their influence on elections.

So in fact, the Court reflected a very liberal bent this last term.  And more worrisome, its liberalism derives not from the Constitution but the policy preferences of the Justices.
Application of longstanding political science models show that this year’s Supreme Court rulings were the most liberal since the Warren Court years of the 1960’s.  As a UCLA professor stated, “Shockingly, the Supreme Court may have been more liberal than the Obama Administration this term.”  
The liberal justices and the conservative justices judge differently.  The conservative justices acted as umpires for the most part.  They considered the facts and the law and decided the cases as they understood the Constitution.  

The liberal justices prevailed so frequently because Justice Kennedy, Chief Justice Roberts, and Justice Thomas each voted with the liberals in at least two close significant cases.  

As a University of Michigan professor commented, “The chief justice really does take restraint seriously.  At times, that is going to put a justice in contraposition to what his ideological preferences might be.”  

By contrast, there was no close case in which even a single liberal justice voted with conservative justices to make a majority.  And only two of the major cases were decided 5-4 in a conservative direction.

The New York Times identified the 10 most important cases of the term. The Washington Post selected 13.  Whichever list is consulted, liberal results predominated.  And in each of the cases, the four liberal justices voted as a bloc for a liberal result.
This is not a coincidence.  The liberal justices act like players on the same team.  
Liberal justices have actually admitted that they strategized in advance to vote as a bloc in support of liberal outcomes.  As Justice Ginsburg stated last year, “We have made a concerted effort to speak with one voice in important cases.”  

I fear that this attitude and the votes of these Justices give rise to an appearance that their loyalties are to each other and to their preferred policies, rather than to the Constitution.  Certainly, it is easier to make cases come out the way you want than to carefully consider the facts, precedent, text, and the arguments of the parties before reaching a decision that might run counter to a preferred outcome.  And it is easier to do so if you know you have four votes in your pocket before you begin the task.

We accept the important role the Supreme Court plays in our constitutional system.  The Constitution trumps the inconsistent policy choices of the American people enacted through their elected representatives.  That is the rule of law.  But when Justices strike down laws based not on the Constitution, but their own policy preferences, that is the rule of judges.  

The Court in that instance acts as a Superlegislature.  Those rulings should, therefore, be questioned.  

The Justices’ personal policy views are entitled to no more respect than the policy views of the American people.  When Supreme Court nominees come before the Judiciary Committee for confirmation, they know better than to say that they will enforce their own views.  They don’t say that the Constitution is a “living document” with a meaning that changes over time.  They know they wouldn’t be confirmed if they did.  Instead, they say the text controls, or if the text is unclear, the structure and the original intent of the Founders govern.  They say that constitutional interpretation is not about politics or good policy.  They tell us it is “law all the way down.”  But when they get on the bench, all bets seem to be off.  
For instance, the text of the Constitution allows the government to deprive people of life if due process of law is provided.  And it makes references to capital, or death penalty, cases.  It is therefore clear that the death penalty is constitutional.  There may be some valid questions on when the death penalty would be legal.  Nonetheless, last month, Justice Breyer and another Justice wrote that they think it is very likely that the death penalty is unconstitutional in all instances.  

This is extremely disturbing.  It’s essentially a revival of the Warren Court, where a Justice’s personal views trump the Constitution.

The Court also ruled this year on same-sex marriage.  I support traditional marriage, as a sizeable percentage of the American people still do.  I respect people with a different view.  The Constitution says nothing about whether same sex marriage is required.  That is for the people to decide through the democratic process.  When the Supreme Court ruled otherwise, that prompted a significant portion of the populace to believe that the Justices were reading their own views into the Constitution.   

The decision was based on a doctrine called “substantive due process.”  Substantive due process is an open invitation to Justices to read their own policy views into the Constitution.  

This year, the Court ruled that “liberty” includes the right to define and express identity, individual autonomy, and dignity.  Try to find those words in the Constitution.
In the past, the Court had narrowly construed substantive due process to protect only those rights established in light of objective history and their deep roots in society.  The majority effectively overturned those rulings.  The Court now thinks that the meaning of the clause does not turn on the text or the intentions of the Framers.  Rather, the Court ruled that the meaning of due process changes as “we” – meaning the unelected Justices – apply “new insight” that derives from a “better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”  In the view of the slim majority, the role of the Court is to make “new dimensions of freedom .., apparent to new generations.”
This is the language of the doctrine of “the living Constitution.”  

It is the Justices amending the Constitution without Congress and the states voting to do so.  It is Earl Warren deciding cases by asking what is just and fair in his mind and not what the Constitution and the laws require.  It is not law at all, never mind “law all the way down.”  And while the decision permits those who hold the traditional view of marriage to discuss their views, it said nothing about the real constitutional right to freely exercise religion.    

Another of the Court’s liberal decisions gave short shrift to another right protected by the Constitution: free speech.  That decision treated as government speech what is actually private speech.  It is an important distinction in the real world.  Government must treat private speech neutrally.  It cannot play favorites.  But the government can discriminate against viewpoints it does not like when the speech is the government’s.  It can fund speech that discourages use of illegal drugs, for instance, without funding speech that encourages drug use.

As a result of the First Amendment ruling, the government may be able to deny many kinds of government benefits to those who dare to express views with which the government disagrees.  This would be an ominous development for everyone.  Specifically, the government may be able to deny tax exemptions and charitable deductions based on the free expression of the groups involved.  That would make a scandal such as IRS’s denial of tax exempt status to organizations based on their presumptive conservative policy stands constitutionally permissible. 
Substantive due process has been used for the last 50 years only to invent new liberal constitutional rights.  Conservatives have not used substantive due process to invent new conservative constitutional rights.  In creating new such rights, liberal justices never are hesitant to overturn conservative precedents.  But those same justices consider the liberal substantive due process precedents to be sacrosanct under stare decisis.  “What is mine is mine and what is yours is negotiable,” they effectively say.  

Conservatives issue legal rulings that produce liberal policy effects but liberal justices won’t issue legal rulings that are conservative.  Each side plays by different rules.  No wonder so many people in this country think the game is not on the level.  A recent CNN poll – a media organization that no one would say is right-wing – found that 37 percent of those surveyed think the Court is too liberal.  Only 20 percent characterized it as being too conservative.
I am concerned about how that backlash could manifest itself.  Even if Justices abuse their power of judicial review by substituting their policy views for the Constitution, we need judicial independence to safeguard the actual Constitution.  We should not do anything to undermine judicial independence.  But if the Court does not give the public the confidence that the meaning of “liberty” in the Due Process Clause means something other than the policy preferences of five Justices, the consequences could be serious for our constitutional order.  

Mr. President, the Supreme Court, like a river flooding its banks, is not staying within its proper channel.  I strongly encourage all the Justices of the Court to exercise the self-restraint that the Constitution demands and that its Framers anticipated.  Ultimately, that will be the only way that the courts will retain their necessary powers to preserve the Constitution.