The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“U.S. SUPREME COURT” mentioning the U.S. Dept of State was published in the Senate section on pages S1671-S1673 on Feb. 28, 2001.
The publication is reproduced in full below:
U.S. SUPREME COURT
Mr. LEAHY. Mr. President, I have become increasingly concerned about some of the recent actions of the U.S. Supreme Court. As a member of the bar of the Court, as a U.S. Senator, as an American, I, of course, respect the decisions of the Supreme Court as being the ultimate decisions of law for our country. As an American, I accept any of its decisions as the ultimate interpretation of our Constitution, whether I agree or disagree. I have probably supported the Supreme Court and our judicial system more than anybody else on this floor.
Having said that, I think we can at least still have in this country a discussion of some of the things the Court has done. Recently, we have seen another assault by the Court on the legislative powers of Congress.
My concern may be more in sadness than in anger over what has happened. It is very easy to give talks about activist Supreme Courts, but it is hard to think of a time, certainly in my lifetime, with a more activist Supreme Court than the current one. Last week, the Court held that State employees are not protected by the Federal law banning discrimination against the disabled. The case was decided by the same 5-4 majority that brought us Bush v. Gore and other examples of judicial activism, the so-called
``conservative'' wing of the Rehnquist Court.
I accept they are indeed ``conservative'' in the sense that they greatly restrict the role of the Federal Government in protecting the individual rights and liberties of ordinary Americans. They are very conservative in the sense they have decided that the unelected five-
member majority can go against the overwhelming bipartisan position of the elected Members of the House and the Senate, Republican and Democrat.
The case I speak of involved two Alabama State employees. Patricia Garrett sued the University of Alabama for demoting her when she returned to work after undergoing treatment for breast cancer. Milton Ash sued the State Department of Youth Services for refusing to modify his duties and work environment to accommodate his medical problems, which included chronic asthma.
These are precisely the sorts of grievances Congress set out to remedy when it passed a landmark civil rights law called the Americans with Disabilities Act, commonly known as the ADA. I was proud to be part of the overwhelming bipartisan consensus that passed the ADA--
proud because of the principles the ADA stands for. It stands for the principle that America does not tolerate discrimination against those in our society who suffer misfortune and illness. It stands for the principle that every disabled person in America is entitled to be treated fairly in the workplace. And it stands for the principle that all employers, whether government or private employers, should be held accountable in a court of law when they violate the rights of the disabled.
Nondiscrimination, fairness in employment, and government accountability are each important core values in our society. They are principles that the American people know well and hold dear. They are the values that the first President Bush upheld when he signed the ADA into law. I remember it very well, that day at the White House when he signed the law. He reminded the Supreme Court of these principles when he took the unusual step of writing an eloquent brief to the Supreme Court in support of the ADA and in support of Patricia Garrett and Milton Ash's right to their day in court. I applaud him for that.
Sadly, last week the activist wing of the Supreme Court paid little heed to the view of either democratic branch of our government--the Congress that enacted the ADA or former President Bush who signed it into law. These five activist Justices gave short shrift to the core values of the American people that the ADA embodies.
Instead of protecting the disabled from discrimination, they denied the disabled their day in court. Instead of requiring fair treatment for all American workers, they created a special exception limiting the rights of government workers. Instead of promoting government accountability, they championed, above all else, the obscure doctrine of State sovereign immunity. That is legalese for saying the government gets a special exemption, preventing it from being held accountable in a court of law.
We hear a lot of rhetoric, complaining about so-called ``activist'' judges. I have heard it used by my friends on the other side of the aisle to describe Democratic judicial appointees who say they will uphold settled law, such as Roe v. Wade, or those who have been associated with public interest organizations that have fought to defend individual civil liberties. It is sometimes applied even to conservative Republican appointees such as Justices O'Connor and Kennedy, when it is felt that they are not being conservative enough.
When he served on the Judiciary Committee in the Senate, our new Attorney General gave a speech on what he called ``judicial despotism.'' He complained about ``the alarming increase in activism'' on the Supreme Court. He referred to the majority of the Court, including Justice Kennedy, as ``ruffians in robes.''
I do not use such language. That kind of name calling does no good for the mutually respectful relationship among the three branches of government, the relationship that our Constitution and the American people call for. I have refrained from using such language, even when I strongly disagree with a decision, such as the 5-4 decision in Bush v. Gore, when the Supreme Court, in effect, decided a Presidential election.
But I mention the question of activism because the American people should know that activism does not come in just one flavor. Some would say judicial activism and liberal activism are one and the same. Of course they are not. Judicial activism can work both ways. It can work to expand protections for all our rights or it can be used to limit our rights.
As one of the Nation's leading constitutional scholars, Professor Cass Sunstein, pointed out in an article last month, history teaches that for most of the 20th century, judicial activism was predominantly conservative, and the unelected judicial branch was far to the right of the democratic branches of our Government.
Actually, that is where we are today at the start of the 21st century. The reality today in courts such as the U.S. Supreme Court and Fourth Circuit that are dominated by ideologically conservative Republican appointees is that the dominant flavor of judicial activism is right wing. In fact, I do not think we have seen such right-wing activism in the courts since the ultra conservative Supreme Court of the 1920s and the 1930s.
There is also, as some commentators have pointed out, an almost arrogant disregard of the Congress by the Supreme Court. There is a feeling that the Congress is somehow unable, even in those cases where Republicans and Democrats join hands in an overwhelming majority--that somehow we are unable to express the will of the people or uphold the Constitution.
In statements that the Court has made, it acts as though the Congress is almost unnecessary; that we are not competent to do anything; that we are irrelevant. Well, not totally irrelevant. I have heard from the Justices that they do want a pay raise. Last year, of course, they were asking for permission to give high-paying speeches to special interest groups. I am glad the Court believes we are good for something.
Last week's ruling is really just the latest in a long and ever growing line of 5-4 decisions that second-guess congressional policy judgment to strike down Federal statutes and generally treat Congress as a least favored administrative agency rather than a coequal branch of the Federal Government.
Last year the Court took aim at the Age Discrimination in Employment Act and the Violence Against Women Act. Before that, it was our laws on intellectual property and workplace standards. Before that, it was our gun control laws.
Now the Court's ``federalism'' crusade adds workers with disabilities to its growing list of victims: older workers, children in gun-infested schools, intellectual property owners, and victims of violence motivated by gender, to name just a few.
If you accept the common theme of this 5-4 majority in the U.S. Supreme Court, the Congress ought to just close up shop and leave town because they will do everything for the American people. The elected representatives of the American people are unnecessary with, as I said, the possible exception of voting for the pay raise that the courts have asked for.
Now it is up to another President Bush and another Congress to seek new ways to protect the rights of disabled Americans and the rights of the other groups sacrificed on the Court's altar of federalism. I believe Congress needs to reassert its Democratic prerogatives--
respectfully but firmly. Congress needs to reassert, in fact remind, the Supreme Court of the Constitution, that we are a coequal branch of government whose policy determinations deserve respect just as they ask respect for their legal determinations. It is time for the people's elected representatives, Democratic and Republican, to reengage the bipartisan consensus of principle that produced the ADA, and to work together to restore the rights of ordinary Americans that have been taken away by an increasingly activist U.S. Supreme Court.
Again, as I have said, I have stood on the floor of the Senate defending the Supreme Court as much or more than anybody I know in my 26 years here. I have defended the Supreme Court on decisions even when I disagreed with the Court. I did that even with respect to the 5-4 decision on the Florida election--actually the national election. While I felt the Court was wrong, I stated that its decision was the law and that we must all abide by it.
But I am disturbed by this increasingly dismissive tone of the Court, in which it acts as though the Congress, Republicans and Democrats together, do not have the ability to represent the American people. The fact that we were elected by people all over this great Nation is almost irrelevant. In the ADA case, the fact that we had spent years on this, and that a Republican President had strongly supported our position, was irrelevant.
I think it is a dangerous path, just as it would be a dangerous path for us to be dismissive of the U.S. Supreme Court. It is equally dangerous for the Court to be dismissive of the Congress because ultimately the American people suffer. We as a Nation have maintained our democracy and fostered our wonderful growth because of our separation of powers--because of the way we have sustained the three equal branches of Government. What a shame it would be if one branch, the only unelected branch, continued to be so dismissive of the other two branches, both elected.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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