Prepared Floor Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Committee on the Judiciary
The Supreme Court and the Remarks of President Barack Obama at the University of Chicago
Tuesday, April 12, 2016

Mr. President,

Before I turn to my prepared remarks, I’d note that the Minority Leader came to the floor this morning to complain, again, that the Senate is following the Biden Rules on the Supreme Court vacancy.  

As I’ve said before, there’s not much that makes the Minority Leader more mad than when his side is forced to play by its own rules.  So, I won’t dwell on his daily missives.

Most of us around here have grown used to it, and don’t pay him much mind, especially given his record of leading a Senate where even some Members of his own party were never allowed to offer a single amendment.  He voted 25 times to filibuster judicial nominees— including a Supreme Court Justice, and at the time argued there is nothing in the Constitution requiring the Senate to vote on nominees.  

And of course, he’ll be remembered as the leader who did more damage to the Senate than any other leader in history when he invoked the so-called nuclear option in November of 2013.

Now I’d like to share a few thoughts about the President’s remarks last week at the University of Chicago.

“I think just from reading the cases you’ll acknowledge that there’s politics in legal rulings.”  

That’s what President Obama said last week when he visited the University of Chicago.  

The President met with law students and answered their questions.  They asked him about judicial nominations, including his decision to make a nomination to fill Justice Scalia’s seat on the Supreme Court.

His responses were revealing.

I agree with President Obama that too often politics seep into legal rulings.  He’s right as a factual matter.  In fact I said the same thing on the Senate floor a few days before the President did.

Oddly, those on the left who were up in arms over my remarks were silent on the President’s.  I suppose that’s because, unlike the President, I think it’s a bad thing that there’s politics in judicial decision-making these days.   

Politics in judicial rulings means that something other than law forms the basis of those decisions.   

It means the judge is reading his or her own views into the Constitution.   

Unlike the President, I believe the biggest threat to public confidence in the court is the justices’ willingness to permit their own personal politics to influence their decisions.  

This isn’t the first time the President has talked about how he believes justices should decide cases.  He has repeatedly said they should decide cases based on something other than the Constitution and the law.   

His views on this subject are clear.  

When Chief Justice Roberts was confirmed, then Senator Obama said that in the really hard cases, “the critical ingredient is supplied by what is in the judge’s heart.”

In 2009, President Obama said he views “empathy” as an essential ingredient for justices to possess in order to reach just outcomes.

And before he made his most recent Supreme Court nomination, the President said that where “the law is not clear,” his nominee’s decisions “will be shaped by his or her own perspective, ethics, and judgment.”

But what’s in a judge’s “heart,” or their personal “perspective [and] ethics” have no place in judicial decision-making.  

The President’s idea of what’s appropriate for justices to consider is totally at odds with our constitutional system.   We are a government of laws and not a government of judges.

I’ve said before that we should have a serious public discussion about what the Constitution means and how our judges should interpret it.  President Obama and I have very different views on those questions.

Politics belongs to us—it’s between the people and their elected representatives.  It’s important that judges don’t get involved in politics.  

That’s because, unlike senators, lifetime-appointed federal judges aren’t accountable to the people in elections.  

It’s also because when nine unelected justices make decisions based on their own policy preferences, rather than constitutional text, they rob from the American people the ability to govern themselves.

And when that happens, individual liberty pays the price.  

To preserve the representative nature of our government and our constitutional system, our judges need to return to their limited role, and decide cases based on the text of the Constitution and laws that the people’s representatives have passed.  

President Obama last week described the justices’ power as an “enormous” one.  That’s true in a sense.  But the Constitution limits the justices’ power to deciding controversies in specific cases that come before them.  

President Reagan talked about this on the day that Chief Justice Rehnquist and Justice Scalia were sworn in.  He recounted how the Founding Fathers debated the role of the judiciary during the summer of 1787.  

As President Reagan said, the Founders ultimately settled on “a judiciary that would be independent and strong, but one whose power would . . . be confined within the boundaries of a written Constitution and laws.”  

For decades now, the Supreme Court has been issuing opinions purportedly based on the Constitution where the Constitution itself is silent.  This kind of judicial decision-making usurps the right of Americans to govern themselves on some of the most important issues in their lives.  

That’s what happens, for example, when the court “discovers” rights in the Constitution that aren’t mentioned in its text and weren’t observed when the Constitution was adopted.  

The same thing happens with ordinary statutes that Congress passes.  

If the justices limited themselves to saying what the Constitution or statute says about the case before them, their power wouldn’t be so “enormous.”  

President Obama says it’s not so simple.  He says the cases that really matter are the ones where there’s some ambiguity in the law.  In those cases, President Obama thinks a justice needs to apply “judgment grounded in how we actually live.”  

Again, I disagree.  

When judges ask what a law should mean, the meaning of a law will change, depending on the judge’s “life experiences” or what judge happens to hear the case.  

The people lose control of what their laws say.  It’s not consistent with our system of self-government.  

James Madison—the “Father of the Constitution”¬¬—explained the same thing in a letter to Richard Henry Lee.  He said that “the sense,” or meaning, “in which the Constitution was accepted and ratified by the nation” defines the Constitution.  

He said that’s the only way the Constitution is legitimate.  

That’s because, in Madison’s words, “if the meaning of the text be sought in the changeable meaning of the words composing it,” the “shape and attributes” of government would change over time.

And importantly, that change would occur without the people’s consent.  It wouldn’t be consistent with the way we govern ourselves through our representatives.

That’s a very different view than the President suggested in Chicago last week when he said that ambiguous cases ask a judge to consider “how we actually live.”  

In President Obama’s view, the judge isn’t asking what a law meant when it was passed, but what it should mean today.

President Obama described this as his “Progressive view of how the courts should operate.”   With respect to the President, it’s my view that the courts shouldn’t operate in a political way at all.  

Not a progressive one, not a moderate one, not a conservative one.

Instead, in my view, the courts should operate in a constitutional way that ensures government by the people.  

Again, when Chief Justice Rehnquist and Justice Scalia were sworn in, President Reagan touched on this very subject.  

He said that for the Founding Fathers, the question about the courts was not whether they would be liberal or conservative.  The question, President Reagan said, was “will we have government by the people?”

Judges have a role in ensuring that we have government by the people.

They fulfill that role when they try to understand what a law meant—either a statute or the Constitution—when the people’s representatives enacted it.  

If the justices decided cases that way, there would be a lot less politics in legal rulings.  Unlike the President, I think that would be healthy for our democracy.  But more important, it was the understanding of those who wrote and adopted our Constitution.

I yield the floor.