What's At Stake: The Constitution and the Supreme Court
July 29, 2005
American Constitution Society - Washington, DC
I am honored to be invited to speak here, especially speaking with, in front of, and about a subject that some of the men and women in this room have tutored me on for the past 30 years. As the old expression goes, they have forgotten more about the "advise and consent" clause and the constitutional issues that I'm going to speak to today than I know. They include Larry Tribe, Walter Dellinger, Chris Schroeder, and many others who have been stalwarts in trying to educate me over the years as to my responsibility.
Don't blame Larry Tribe for my being a constitutional law professor. If you're wondering why there's been such an aberration in the lack of understanding of constitutional issues by young lawyers, I am partially responsible.
Look, I have a serious speech, and you are eating, and I am a United States Senator. I am very accustomed to not being paid attention to, so please continue to eat. I apologize for the length of my speech; but I don't know how to address this serious a subject, quite frankly, in a shorter fashion.
I would like to begin by reading two quite different quotes to you, each from important jurists.
Jurist #1:
[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education... "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."
Jurist #2:
Compare the facts in Griswold with a hypothetical suit by an electric utility company ? to void a smoke pollution ordinance as unconstitutional. The cases are identical. In Griswold a husband and wife assert that they wish to have sexual relations without fear of unwanted children.... The electrical company asserts that it wishes to produce electricity at low cost.... There is no principled way to decide... that one form of gratification is more worthy than another.
Now, many of you, including Larry, Walter, and others who helped me prepare for a hearing years ago, know exactly what Law Review article that came from. It will not surprise you to know that I -- and I suspect most of you -- agree with jurist number one. In my opinion, the first quote I read is a much healthier understanding of our Constitution with regard to the respect it affords individuals in making fundamental personal life choices.
There are periods in our country's history when Americans re-examine the essence of our social contract. They have occurred half a dozen times. These periods invariably include debate over the meaning of our "civil bible" -- the Constitution -- because we have relied so much on that document to articulate how we see ourselves as a people and how we see ourselves as a nation.
And let me say at the outset that honest people, bright people, decent and patriotic people have very, very different views on how to read our civil bible.
These re-examinations happened in the Civil War and in the 1930s, and it's happening again in our lifetime, having been going on in earnest since the mid-1980s.
First, it's a debate over how much government should be able to intrude upon the most personal choices of Americans. This is Terri Schiavo and much more. The second, the other side of that same coin, is a debate about whether government can act as a shield to protect people from abuses by powerful interests. For example, can we keep tobacco companies from targeting our children?
These very questions are debated daily in the House and the Senate. They are debated in the halls of academia. They are debated over the dinner table in homes throughout America. And just as in prior periods of our history, they are debated most vociferously when a vacancy occurs on the Supreme Court of the United States -- when filling that vacancy has the potential to fundamentally alter the direction of the Court. That's when the debate reaches a crescendo.
And the debate has reached that crescendo today, with good and just reason. The debates about a confirmation are one of the most important venues for raising fundamental questions about which constitutional view is better for our country. And the outcome of the debate can make a huge, huge, huge difference.
The quotations which I began with express very different constitutional views. The second, it will not surprise you, was written by Judge Robert Bork, who came before the Judiciary Committee in 1987, as a believer in a kind of a "strict construction." He was a self-proclaimed originalist. He had previously said, and I quote, "It is necessary to establish the proposition that the framers' intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed."
According to originalist logic, many Supreme Court decisions that are fundamental to the fabric of our country are simply wrong. By Judge Bork's own estimate, dozens upon dozens, including major decision -- holding that couples could not be prohibited from using contraceptives, rulings that the government could not involuntarily sterilize criminals, rulings relating to the incorporation doctrine -- were all declared by Judge Bork and others who embraced what we now call the "Constitution in Exile" firmly to be constitutionally incorrectly decided.
At that time, I particularly thought it critical to probe Judge Bork's views on privacy. Judge Bork stated quite clearly he believed there was no -- emphasize no -- general right of privacy the Constitution protects. Judge Bork would never have written, let alone joined, the opinion that contains the first quotation I read, Justice Kennedy. The man who took the seat for which Judge Bork had been nominated authored the language that I quoted you first.
Justice Kennedy's views reflect, in my judgment, a much healthier -- and that's an unusual word to use in reference to the Constitution -- but a much healthier view of the Constitution and its role in our society.
When the Senate voted not to confirm Judge Bork, it sent a message that his views were not right for the country. Make no mistake, however, that did not end the debate. But also make no mistake that the defeat of Judge Bork did not have a profound effect, a profound effect on constitutional jurisprudence and the lives of average Americans the last 20 years.
Just place Bork everyplace where Kennedy has been, in every decision -- nice little project for you 1-Ls -- and you'll see a very different America. Not an America outlined by bad guys, not an America outlined by people who are trying to feather the nest of any interest, but honorable, decent people who have a very different view of the Constitution and those ennobling phrases that we're going to be debating 200 years from now.
There's a lot of misdirection out there these days on these issues, where terms and phrases are used to mask what is really at stake. The innocent-sounding and misleading term "strict construction" is used when what is really at stake is a wholesale liquidation of any constitutional protection of privacy. A wholesale liquidation, depending on if they use "strict construction" the way Bork meant it or the way Hugo Black meant it. It depends on what they mean by the phrase -- which means the phrase does not tell you much of anything.
The American people are smart, though. And I believe that over the course of the upcoming weeks and months they will get it. They will see to the heart of the matter about what really hangs in the balance.
And if anything, the stakes haven't decreased since 1987; they've increased. Since 1995 there have been 193 five-to-four decisions. Justice O'Connor was in the majority in 148 of those 193 decisions.
The most immediate consequence of Justice O'Connor's retiring may be that Justice Kennedy will replace Justice O'Connor as the most important swing vote on the Supreme Court.
To be sure, Justice Kennedy is comparatively moderate on certain key issues, for instance, decisions stopping capital punishment of juveniles and the mentally retarded.
But while Justice Kennedy is no Judge Bork, he is also no Justice O'Connor. For example, Justice Kennedy believes that any affirmative action in higher education or race consciousness in redistricting amounts to impermissible discrimination under the Constitution. He further thinks that most campaign finance reform laws are unconstitutional and that Congress cannot permit the disabled to sue states to force the states to make their courthouses accessible.
And there are already cases on the Supreme Court docket for next term involving assisted suicide, the use of race as a factor in striking potential juries, and the issue of federalism that would allow a new Justice to begin rewriting our nation's constitutional law.
The country will also be facing critical questions on the extent to which the President of the United States -- any President -- can exercise unchecked, and thus unlimited, power in national security matters at the expense of the rights of average citizens -- instances where Justice O'Connor has been a voice of moderation and reason, a voice respecting the Constitution's system of checks and balances.
It was Justice O'Connor, after all, who issued this important cautionary note to this Administration when she said, "A state of war is not a blank check for the President when it comes to the rights of our nation's citizens."
But this is just the tip of the iceberg. While it is essential for Americans to understand how much hangs in the balance over the next few weeks, we also need to think in generational terms.
We currently have justices serving on the Supreme Court nominated by President Nixon and Ford. We even have judges in the lower courts still serving appointed by Presidents Kennedy and Eisenhower. From the early 1800s, in fact, the average time federal judges spend on the bench has increased from 15 years to 24 years.
I'm going to do something now that is somewhat imprudent. It will surprise you coming from me, I know. I am going to make a prediction as to the most important issues the Supreme Court will face in the next 20 years or so. First, the extent to which Americans' personal privacy is honored. Is there such a right? And second, the ability of the American people to protect ourselves against powerful organizations, powerful interests, and large economic forces that run roughshod over us.
For decades the consensus has been that government should stay out of the bedroom but be able to regulate the boardroom where necessary to protect vulnerable Americans. Yet the Radical Right is aggressively trying to upset that longstanding American consensus and reverse it.
The first issue, whether government will be able to intrude in Americans' most personal life choices, took center stage in the '87 Supreme Court battle. And it is returning with a vengeance. This is Terri Schiavo and much more.
Let me say point blank, notwithstanding the fact that constitutional scholars disagree and differ on this point, I believe with every fiber in my being that the Constitution creates a zone of personal autonomy that government should not be able to intrude upon. And make no mistake about it, folks, the American people believe that.
Larry, remember when we were we were sitting on my side screen porch preparing for the Bork hearing? And God love him, Professor Kurland, one of the great constitutional scholars -- a conservative constitutional scholar from the University of Chicago --was sitting there, and I turned to you with young Ron Klain as my assistant, "We ought to make this about privacy, about Griswold."
And Professor Kurland said, "No, no, no, no, no." And we were about to go have lunch at a place in the Greenville shopping center. I said, "Well, Professor Kurland, I'm telling you what I believe the American people think." I said, "Please come with me and stand behind me, you guys, as people walk up to the shopping center, and just listen to what people say."
And I think I embarrassed him. I asked the first six or seven women and men, mostly women who came forward, I said, "My name is Joe." "Oh, yes, Senator Biden," or "Yes, Joe." I'd say, "Do you believe you have a right to engage in any consensual act in your bedroom with your husband?" And I remember Kurland turned red. I'm serious about this. Do you remember this? And they all said -- everyone said yes. They're like, "Why do you ask, but yes." And then I'd ask them the following question: "Why do you believe that?" And every single person said, "The Constitution." That's the phrase they used. They said, "The Constitution."
And I know to scholars and to all of you great lawyers, that this is not necessarily relevant. But I'm telling you, it is incredibly relevant; incredibly relevant.
While many people, many, many people, smart, educated people, assume that the personal privacy protections in the Constitution are inviolable and will always be in existence, the Constitution in Exile crowd doesn't. They believe not just that privacy rights should be diminished; its members believe that there should be none. I repeat that -- no general right of privacy whatsoever in the Constitution.
So what does that mean? First, the government, whether state, federal, or local, could forbid couples, as they had in the past, from using contraception.
The government could also constitutionally impose restrictions on the number of children you could have. Such restrictions exist in other countries; and God only knows what happens here in two, five, 10, 20, 30 years. This may seem an unlikely outcome; but remember, this is the same crew that brought you Schiavo.
Moreover, the next 20 years will be marked by great developments in medical and informational technology. Will individuals be able to take advantage of stem cell research with its enormous promise? Or will legislators enact their moral opposition, and will a conservative Supreme Court refuse to step in to protect those individual rights?
Will the government have unlimited power to monitor individuals -- what they say, where they go, whom they meet with, who they associate with? Will originalist judges tell us their historical investigations of the Constitution convince them the Framers would have been comfortable with this? Will our justices protect our medical records, information regarding genetic propensities for diseases, financial data?
This and more is at stake over privacy. It goes well beyond Roe v. Wade.
And for as long as the Radical Right has been trying to reverse our constitutional understanding of privacy, they have also been trying to reverse a consensus that no one is talking much about -- except some of you in this room -- a consensus going back to the days of the Great Depression that government can act as a shield to protect Americans from the abuse of powerful interests.
Can we protect the air we breathe? Can we keep arsenic out of our drinking water? Can we keep tobacco companies from targeting our kids? Can we establish minimum national standards to provide equal opportunity and human dignity for society's most vulnerable members -- our elderly, our disabled, women victimized by violence? That is all at stake.
There are instances when our democracy has to step in to alleviate inequities; to recognize human dignity and to lift people up by ensuring equal opportunity. Others, however, disagree with this consensus.
Michael Greve of the American Enterprise Institute puts it straightforwardly: "I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice. We want to withdraw judicial support for the entire modern welfare state." That's what this is about. This is not a debate about the solvency of Social Security, for example. It's about the legitimacy of Social Security.
Listen to the debates going on underneath these constitutional issues. It's about devolution of government. It's about withdrawing, withdrawing as a matter of law, the right of the federal government to do much of anything other than provide the national defense.
And lest you think they don't mean it, I'm the guy that wrote the crime bill, 100,000 new cops on the streets. The other side votes against it, even though they love it. Not a joke. They love it. They can't say a negative thing about it. But they vote against it because it is contrary to the paradigm of devolution of government -- the federal government should not be involved in aiding local government. That's the legislative way they're trying to change the court judicially.
This is the agenda, folks. And the Court already has such acolytes. Justice Thomas has voted to strike down over 65 percent of the federal laws that have been reviewed by the Court. What would happen if we had five Justice Thomases? Thousands of laws -- environmental, criminal, civil rights -- could be declared unconstitutional.
Justice Thomas wrote in one of his opinions recently, "If anything, the wrong turn was the Court's dramatic departure in the 1930s." What I describe as a "healthy consensus," Judge Thomas and others call "a wrong turn."
What's at risk if this view of the Constitution ever gained full ascendancy? The Clean Air Act, the Safe Drinking Water Act, the Clean Water Act, and the Endangered Species Act, all rely on the Congress's Commerce Clause power.
The Radical Right is determined to elevate private property at the expense of protecting our safety, well-being, and communities. Under their reading of the appropriate language in the Constitution -- the Takings Clause of the Fifth Amendment -- the only way to keep a chemical plant out of your neighborhood would be to pay off the chemical plant to not build because you are taking their property.
Our bedrock civil rights laws are also based on post-1937 constitutional interpretations.
There also could be no federal minimum wage and no maximum hour laws. We wouldn't be having a debate about increasing the minimum wage because there wouldn't be one.
And lest you think this is hyperbole, look at what the debates taking place in local elections are about. Look at the debates that are taking place in the chamber in which I work. I was joking with four of my new colleagues as we were having coffee and doughnuts before going into a committee meeting. I said, "I have a great idea how to deal with the plight of the elderly." And they all looked and said, well, what you got in mind? It's a true story. I won't name the four Senators. And I said, "You know, we should pass a law mandating that every employer has to take six or seven percent of their revenues and put it into a fund and mandate that every single American, no matter where they work, has to take a similar amount and put it into a fund."
One of the new Senators, I swear to God, said, "That's confiscatory." One of the brighter ones said, "You're not getting me to go there, Joe." Let me ask you this rhetorical question. Honest to God, take off your centrist or moderate or liberal, wherever you fall in the spectrum, hat. Do you believe if we did not have a Social Security law now, do you believe one could be passed today in the House of Representatives? Honest to God, what do you think? I don't think there's any possibility.
So this is what's at stake, folks. This is the proportion of the potential consequences of the turning of the Court.
Under something called the nondelegation doctrine, the Court may have to strike down the Occupational Health and Safety Administration (OSHA), which is tasked to make sure American workers are safe.
The problem under the nondelegation doctrine is that many of today's modern federal agencies are just like OSHA. They exercise broad rule-making powers and enforcement powers that are unconstitutional according to many.
This is a doctrine -- the nondelegation doctrine -- that wisely gave way a long time ago to the reality of our complex modern age. Congress simply can't legislate every particular rule in detail, so it empowers agencies to do so, with Congress retaining the power to come in and oversee what that agency is doing. This system makes sense. It has some abuses that can be corrected through the legislative process, but it is at the very heart of what allows our government to function in this complicated society we live in.
And it's not only OSHA that is at risk if the nondelegation doctrine and other doctrines favored by the Constitution in Exile crowd -- such as a requirement that agency members must be removable by the President at will -- are accepted by the Supreme Court. The Federal Communications Commission, the Federal Reserve Board, the Securities & Exchange Commission, just to name a few, would hang in the balance. And there would result a fundamental shift in power from the powerful to the extremely powerful.
So what's the common theme here? It is to prevent, in my view, "We the People" from being able to protect ourselves from abuse at the hands of society's already powerful and growing even more powerful. The Radical Right's agenda would give enormous power to the already powerful and eliminate the ability of the less powerful to use the democratic branches of government to rebalance the playing field.
But why are the courts so important to the Radical Right? And they are. In 1988 a Reagan Justice Department document stated, "There are few factors that are more critical to determining the course of the nation and yet are more often overlooked than the values and philosophies of the men and women who populate the third co-equal branch of the government, the federal judiciary." If there was ever anything the Reagan Administration wrote that was accurate, that is it.
The American Enterprise Institute's Michael Greve recently stated, to quote him again, "I think the judicial appointments are what matter most of all."
So why doesn't the Radical Right just push their agenda through the Congress and the state legislatures?
First, the people don't agree with it. And secondly, it is an acknowledgment that their current control of Congress and the presidency is temporary. Now is the time for the Right to strike and lock in their philosophy; to handcuff future Congresses from being able to counteract the Right's agenda. For once something is declared unconstitutional, other than through an amendment, we find ourselves at an overwhelming disadvantage to move through with the legitimate will of the American people.
It is also an acknowledgment that the Radical Right can't take on many popular programs and policies -- our environmental and worker protections -- in the clear light of day in the democratically-elected branches of government. So they focus their fire on the judiciary.
Again, don't take my word for it. Richard Epstein, one of the intellectual powerhouses of this movement, said, "Some movement in the direction of judicial activism is clearly indicated."
We are talking about a movement that would wield the Constitution, not as a shield, but as a sword to push an extreme agenda -- an agenda, I believe, the American people do not support.
And it's something that has already begun. The Rehnquist court has been the most activist Supreme Court in our history, striking down a record three dozen acts of Congress in less than 20 years.
What kinds of laws is our high Court striking down? Popular, common sense laws, laws that said, for example, you can't have guns within a thousand feet of an elementary school; laws battling violence against women; laws requiring cleanup of low-level nuclear waste; and laws saying states can't steal somebody's ideas and inventions.
Over the first seven decades of the Court's existence, only two federal laws -- two, t-w-o -- were held unconstitutional.
Let me focus for a minute on one of those laws already struck down, one that's very near and dear to my heart. I grew up in a family where the worst form of unmanly cowardice that one could engage in was to strike a woman. It was the lowest act of all.
As a result, I wrote a law called the Violence Against Women Act, and I have never put so much energy into any single piece of legislation in my 32 years in the United States Senate. I thought the single most important aspect of the law was to empower women to take control of their own lives, to be able to go into federal court and sue their abuser for the abuser's car, business, and worldly goods for the abuse inflicted upon them, whether or not the state or federal prosecutor wished to proceed criminally.
But in 2000 the Supreme Court struck down this right, despite nine hearings, over a hundred witnesses, despite the support of 38 states' attorneys general, despite the overwhelming evidence of gender discrimination in local and the state criminal justice systems.
I term this -- I realize that one man's meat is another man's poison -- but I term this "judicial activism." Laws like this are what's at stake, in my view.
We do well to recall the brilliance of the Founding Fathers who devised a system of judicial appointments specifically aimed at preventing the President from effecting a radical shift in the judiciary. When I was sworn into the Senate, I vowed to "support and defend" this carefully balanced system. And I have no intention of abdicating that responsibility.
The question most asked of me by my students in the constitutional law course I have been teaching the last 15, 16 years, however many -- a long time -- is what the Founders intended the "advise and consent" clause to mean.
To me, the answer is clear and overwhelming. The Founders intended the Senate to take the broadest view of its advise and consent responsibility. And throughout history, the Senate has taken this responsibility to restrain the President very seriously. Over and over the Senate has scrutinized nominees' constitutional methodology and philosophy, and rejected nominees on that basis. One out of five nominees have been rejected over our history.
And I for one find it useful to recall the 1959 statement in the Harvard Law Record of a young Arizona lawyer named William Rehnquist. He called for a Senate approach "of thoroughly informing itself on the judicial philosophy of a Supreme Court nominee before voting to confirm him."
As Walter has taught me, along with my good friend who I impose on much too much, Chris Schroeder of Duke, the country has done this particularly when it is deeply divided and when the balance of the Court is at stake.
Think of how the world has changed since Justice O'Connor first joined the high Court. In 1981, almost none of us had computers. E-mail was largely a figment of the imagination. The Internet was a narrow path being blazed on the frontier of technology, not an Information Superhighway. Imagine what our world will look like in the year 2030 when today's nominee, God willing, could be expected to retire.
Long after Saddam Hussein is dust, after phrases like "CIA leak" are tossed into the scrap heap of historical trivia, long after President Bush and Joe Biden are gone from Washington, far into the 21st century our newly minted Supreme Court Justice will be making critical, critical decisions about the kind of country my children, grandchildren, and great-grandchildren will be living in.
Now, I'm not going to prejudice whether I in the end will vote for or against Judge Roberts. He came to see me, and I told him straightforwardly what I wanted to know. I didn't ask him his views at the time. I said, "Judge Roberts, there are two things at stake" -- and I mentioned them here -- "how far can government intervene into the areas of personal autonomy? How far? What limits does the Constitution provide, if any? And the other side of that coin is to what degree can the government act as a shield to prevent the powerless and the less powerful from the imposition of the heavy economic hand of corporations?" And I said, "lastly, Judge, I want to know your view of stare decisis as a Supreme Court Justice."
It's not the test, I told him, whether or not he's an honorable, intelligent, and well-respected man. To the best of my knowledge, he is.
The Senate is charged first with coming to some understanding of the nominee's constitutional disposition toward the great questions of the day, and second with expressing his judgment as to whether or not those views are acceptable at a time when we have a closely balanced Supreme Court.
Judge Roberts finds himself a fulcrum in our deeply divided nation, upon which great constitutional questions hang in the balance. He has become the embodiment of people's hopes and fears about where the Constitution heads in the future. For the American people -- and we vastly underestimate the soundness of their judgment -- fully understand that the decisions a new Justice will make will affect the very way they can live their lives for a long time to come.
It's an unenviable position and an enormous responsibility for Judge Roberts. I will examine if, in my opinion, he is prepared to protect the personal autonomy of Americans as well as the ability of the government to act as a shield to protect those with less power from the abuse of powerful interests. And the critical determination -- critical for me -- will be his judgment on stare decisis. These questions will determine how I will vote.
For I want to make it clear to you -- and especially you students here -- after you go through the great constitutional law scholars under which you study, and they talk to you about the way in which the Founders may or may not have intended the "advise and consent" clause to work, I suggest you do what I suggest my students do.
Take off your legal scholarship hat, stand back, and ask yourself the rhetorical question: can you imagine on that hot, steamy summer, with the Founders sitting on the second floor so no one could hear what they were doing; can you imagine them saying, by the way, we are going to have three co-equal branches of government. Two of them will be able to be scrutinized by the American people, and the presumption will be that they are not entitled to the office unless a majority of the people conclude they should hold the office. But the third branch, all we want to know is are they honorable, decent, and straightforward?
And as my little granddaughter says, "Pop, give me a break."
Thank you very much, ladies and gentlemen, for listening.
