Nominaton of Elena Kagan to be Associate Justice of the Supreme Court--Continued
Floor Speech
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Mr. WHITEHOUSE. Mr. President, I have come to the floor to speak for a few moments about the Kagan nomination, and I believe we have about 20 minutes of time on our side. If somebody wishes to come and speak, I would gladly yield the floor, since I have had the chance to speak on her nomination as a member of the Judiciary Committee. But in the absence of somebody who has not had that chance, I wanted to go ahead and say a few words because I have been listening off and on throughout the day to the debate that has taken place on the Senate floor regarding her nomination and I have heard over and over concerns expressed--particularly from the other side of the aisle--about this terrible spectre of judicial activism, the judicial activism that looms over the Court and looms over the Kagan nomination.
I know it is a familiar tune from the other side. I think most of them could sing it in their sleep, frankly. But if you actually look at where the activism is coming from, the surprising conclusion that I think objective people would have no choice but to reach is that it is the rightwing of the Supreme Court--the rightwing; the Roberts wing of the Court--that is in fact engaged in all of the activism.
I think to a certain extent activism is a term of general criticism and that it applies to decisions you don't like. So if it is a decision that goes a way you don't like, it is an activist decision. If it is a decision that goes your way, no matter how much it changes the law, then that is not activism because I agree with it. So I think the discussion about activism is a little bit flavored by the question of point of view.
Trying to set that point of view question aside, I thought a bit about what might the objective indicators of an activist Court--or in our case an activist bare majority on the Court--look like. What would the telltales be that you had an activist Court doing its thing? Well, I think there are a few, and they seem to be ones that are actually pretty germane to this activist bloc on the Supreme Court.
For instance, if you were an activist Court, or an activist bloc on the Court, you would issue a lot of 5-to-4 decisions, and you would issue 5-to-4 decisions in major cases. The reason you would do that is because the Court is constantly presented with the choice to reach far with a bare majority or dial its aspirations back and achieve a broader consensus on the Court. So every decision presents, to one degree or another, this choice. When you see recurring 5-to-4 decisions, you see a majority of five that would appear to want to go to a particular place, even if they can't bring the other four judges with them, and who have deliberately chosen not to write a narrower decision, a more modest decision, a more conservative--small ``c''--decision that could have attracted six or seven or eight, or even perhaps all nine members of the Court.
That is a flag that would fly over an activist Court--a penchant for 5-to-4 decisions. Sure enough, the Roberts Court is notorious for 5-to-4 decisions, particularly in major cases, and particularly in cases that change the law--that change the interpretation of the Constitution. So there is one flag, and they seem to be flying that warning flag right now.
If you were an activist Court, you would probably tend to break the informal rules of appellate decisionmaking. Because the rules might constrain you from getting where you want to go, and they would be a nuisance because you had a purpose--you had a place you wanted to get with your decision, and so that the rules would be less of a hindrance for you, because you would want to get beyond them, you would set them aside.
One of the dangers of the Supreme Court is that it is the court of final appeal. They have only their own self-restraint that prevents them from going anywhere. They stand above the checks and balances of our government in that respect. So these rules the Court tends to impose on itself to keep itself within proper bounds are important rules.
One of them is that appellate courts do not engage in factfinding. It is not their province. Factfinding is done by juries and it is done by trial judges. Those facts are established at the trial court level. Once you get up above that and into the appellate courts you should be looking just at questions of law. The courts should not be engaging in factfinding at those upper levels, certainly not at the Supreme Court level. The exception to that principle is where the fact is so obvious that the Court can take what they call judicial notice of it. The Court can take judicial notice that San Francisco is west of Denver. It is an indisputable fact. It is no big deal. But other than that, factfinding is discouraged. So another little telltale would be is where the Court is running over those principles that are principles of self-restraint.
Sure enough, you see the Roberts Court doing just that. Indeed, in one of its biggest leaps in which it knocked out enormous amounts of precedent, in which it knocked out enormous amounts of legislative practice and made a huge doctrinal shift, was the case of Citizens United. In that case, the Court made a finding of fact. It made a finding of fact that was critical to getting where it wanted to go in that decision. The finding of fact was the following--the finding of fact was that corporate money, the independent expenditure of corporate money in elections, cannot contribute to the corruption of those elections. Corporate money, independently spent in an American election, cannot possibly tend to corrupt that election.
It is an interesting finding of fact because I think, as anybody who has been through a contested election would understand, it is a finding of fact that is in fact wrong. It is untrue. Yet they made it as a finding of fact. It is also a finding of fact that ran contrary to the vast legislative record that had been built up in Congress on this question when it had come up in previous matters before the Court. But because of the peculiar manner in which they got to this question in Citizens United--it was not a question presented by the parties; they added the question themselves, the Court did, and asked the parties to brief it in, so there had not been a record on this.
They put themselves in a position where they could ignore the previous record of fact and then they created their own finding of fact notwithstanding that findings of fact are not something an appellate court is supposed to do, and in doing so they found a fact that was in fact not true. It is a false claim to assert that. It is not a fact.
When you look at that, another flag goes up. That is the kind of thing an activist Court would be doing. They would be trespassing over the self-imposed rules of judicial restraint when necessary to get to the point they wish to achieve. Again, it was 5-4, so you have a ``two-fer'' on that decision.
If you are an activist Court, you would probably want to keep doing what you are doing so you would start advancing theories that allowed you to look at the precedents of the Court, the history of its decisions, and selectively knock down precedent you did not like. Nothing could give a Court more power and more room for activism than to be free of the constraint of precedent, of the previous decisions of the Court.
The only way you can get yourself free of precedent--because it is there. The previous courts made those decisions. It is in the records. You go to the United States Supreme Court Reporter and you can look them up. So what you have to do is you have to knock it down if you do not like it. In order to do that, if that was your intention, you would want to come up with a theory that allowed you to do that. Sure enough, in Citizens United, in his concurring opinion, the Chief Justice of the United States did that. He came up with a theory that says if a precedent is hotly contested, then over time it clearly will be deemed not as valid as other precedent and ultimately it can be replaced with precedent that is not hotly contested.
Who gets to decide on the Supreme Court whether a precedent is hotly contested? Obviously, the Justices themselves. So you can create a self-fulfilling prophecy in which Chief Justice Roberts and his bloc of four other conservative voters who make up the group of five that is always steering the Court to the right, can hotly contest any precedent they please. They can hotly contest it, and hotly contest it, until they undermine it more and more and finally they knock it down. Despite all the things they said about respect for precedent and judicial modesty when they went through their hearings before the Senate, what they have actually done is create an analytical tool, a device for selectively undermining precedent they do not like, hotly contesting it, disabling it, and taking it out. They can reshape the precedent of the Court to their liking using this doctrine.
There is another flag that goes up. Why would you create a doctrine such as that, that allows you to selectively disrespect, hotly contest, and knock out the precedent of the Courts past if you did not have an intention to try to shift the precedent to support a particular direction? If you are an activist Court, you would give Congress very little deference. And this is a Court that gives Congress very little deference. Jeffrey Toobin, who writes on the Supreme Court frequently, in an article entitled ``No More Mr. Nice Guy, The Supreme Court's Stealth Hard-Liner,'' an article about Chief Justice Roberts, back in May of a year ago--so this is a little bit dated, May 25, 2009--said that:
In every major case since he became the Nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the State over the condemned, the executive branch over legislative, and the corporate defendant over the individual plaintiff. Even more than Justice Scalia has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
``Served the interests and reflected the values of the contemporary Republican Party''--by, in every major case, siding with the executive branch over the legislative.
That is just one piece of it. The other is the disrespect for laws that have been passed by Congress and their intent. Lilly Ledbetter is the perfect case. Congress wanted to protect women from discrimination in the workplace, on what they are paid. Rather than read the statute to protect Lilly Ledbetter's right to a judgment, they came down with a finding that for so long as the company was successfully able to prevent her from finding out that she had been discriminated against, they were able to get away with it. That is not a finding this body ever would have accepted. But it was what the Court came down with. And it gave Congress no deference--again, a tradition in these Roberts Court decisions. Why would you want to defer to Congress if you have a point of view that you want to bring to the Court? You wouldn't want Congress's point of view involved, you would want your point of view, and therefore deferring to Congress would not be part of your goal.
So the lack of deference, a striking pattern in the Roberts Court, is again consistent with what you would expect from an activist Court. Most of all, if you were an activist Court, a pattern would begin to emerge to those decisions as the Court issued them, particularly those 5-4 decisions. On the Roberts Court, one pattern is striking, the clear pattern of corporate victories at the Roberts Court. It reaches across many fields--across arbitration, antitrust, employment discrimination, campaign finance, legal pleading standards, and many others. Over and over on this current Supreme Court, the Roberts bloc guiding it has consistently, repeatedly rewritten our law in the favor of corporations versus ordinary Americans. That is one of the reasons why Jeffrey Toobin, in his article, was able to say:
In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the corporate defendant over the individual plaintiff.
Again, that was only effective May 25 of 2009, so it is a dated statistic. But certainly as of May 25 that was the record when corporations came before this Court.
A recent article--not May 25 of 2009; this one is July 24, 2010--was written by Adam Liptak. The headline was ``Court Under Roberts Has Become Most Conservative in Decades.'' It was published in the New York Times. Here are some of the findings:
In the 5 years [of the Roberts Court], the court not only moved to the right but also became the most conservative one in living memory, based on analysis of four sets of political science data.
The ideological direction of the court's activism has undergone a marked change toward conservative results.
Another quote from the article.
The first term of the Roberts court was a sharp jolt to the right.
Another quote from the article.
[F]ive years of data are now available, and they point almost uniformly in one direction: to the right.
That was another quote from the article.
A more human reaction was of Justice Sandra Day O'Connor:
``Gosh,'' Justice Sandra Day O'Connor said in the law school forum in January a few days after the Supreme Court undid one of her major achievements by reversing a decision on campaign spending limits. ``I step away for a couple of years and there's no telling what's going to happen.''
That was the reaction of Sandra Day O'Connor, a Republican appointee.
They turn things very quickly when they have the chance.
In 2000, the Court struck down a Nebraska law banning an abortion procedure by vote of 5 to 4, with Justice O'Connor in the majority--making it a 5-to-4 striking down of that statute.
Seven years later, the court upheld a similar federal law, the Partial-Birth Abortion Act, by the same vote. ``The key to the case was not in the difference in wording between the Federal law and the Nebraska act,'' Erwin Chemerinsky wrote in 2007 in The Green Bag, a law journal.'' It was Justice Alito having replaced Justice O'Connor.
A new person on the Court, almost identical set of facts, complete reversion of decision, 5-4 to 5-4.
Similarly, in 2003, Justice O'Connor wrote the majority opinion in a 5-4 opinion to allow public universities to take account of race in university admissions decisions. A month before her retirement in 2006, a similar decision came up, and because that decision was there on the books, that opinion, the Court refused to hear a case challenging the use of race to achieve integration in public schools.
Almost as soon as she left, the article says, the Court reversed course. A 2007 decision limited the use of race for such a purpose, also on a 5-4 vote. So I suppose you could add another flag to the list of signs of an activist Court and that would be that they change very recent decisions as soon as the majority changes so they control the votes, the way we might here in the legislature. It is very appropriate in the Senate when the majority shifts.
I see the distinguished ranking member of the Finance Committee. If he were to be the chairman of the Finance Committee, I am sure the focus of the Finance Committee would change from that under Democratic leadership, and that is part of majority control, but it is not supposed to be that way on the Supreme Court. The Supreme Court is supposed to be not dealing with partisan questions, not going for a simple majority, but answering to the Constitution.
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