ICYMI: Sen. Cruz: The Court Has Declared Itself a Super-Legislature

WASHINGTON, D.C. – U.S. Sen. Ted Cruz (R-Texas) yesterday held a hearing, “With Prejudice: Supreme Court Activism and Possible Solutions,” in the Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts. The hearing focused on the Supreme Court’s recent lawless decisions ending traditional marriage and rewriting Obamacare to save it.

“The Court today is not a body of jurists. It is not a body of judges following the law, but rather it has declared itself, in effect, a super-legislature,” Sen. Cruz said. “Justice Scalia powerfully wrote in dissent that the decisions of the Court this term are a fundamental threat to our democracy, that five unelected lawyers have declared themselves the rulers of 320 million Americans.”

Sen. Cruz cited past cases that laid the groundwork for stripping Americans of their most precious right—the right to govern themselves. 

“In more recent cases, most notably Roe v. Wade, the Court created another new right – the right to abortion that has resulted in tens of millions of unborn children losing their lives. To anyone actually interpreting constitutional text, none of these rights have any basis in the language of the Constitution that governs this nation,” Sen. Cruz said.

In a powerful exchange with Prof. John Eastman, a witness from Chapman University’s Dale E. Fowler School of Law, Sen. Cruz described how activist judges subvert the law. 

“Activism has a very specific meaning. It is any time a judge follows his or her policy preferences instead of the law. It is not the role of a judge to impose his or policy preferences,” Sen. Cruz said. The full exchange can be viewed here.

View the hearing in its entirety here. Sen. Cruz’s opening statement can be viewed aboce, and the transcript is available below:

"Welcome. I apologize that we were delayed somewhat in getting started, but I thank each of the three distinguished witnesses for joining us. I thank my colleague, the ranking member, for being here.

"It is with deep disappointment that I convene this hearing. I have long admired and even revered the United States Supreme Court. I began my career as a law clerk for Chief Justice William Rehnquist. Indeed, I clerked alongside one of our witnesses, Professor Eastman. And I spent over a decade litigating before the United States Supreme Court, both as the Solicitor General of Texas representing the State of Texas and as a lawyer in private practice representing a variety of clients. But much to my great disappointment, this past term the Court crossed a line, continued its long descent into lawlessness, to a level that I believe demands action.

"The Court today is not a body of jurists. It is not a body of judges following the law, but rather it has declared itself, in effect, a super-legislature. Justice Scalia powerfully wrote in dissent that the decisions of the Court this term are a fundamental threat to our democracy, that five unelected lawyers have declared themselves the rulers of 320 million Americans.

"We've seen the Court's imperial tendencies previously. In the infamous case of Dred Scott, the case that helped precipitate the Civil War, the Court struck down a federal law that banned slavery in the territories. Why? Because the Court declared that liberty includes the right to own slaves - a horrific, contorted decision with no support whatsoever in the actual text of the United States Constitution. In Lochner v. New York, an activist court struck down minimum wage laws, an action that from a policy perspective may well have been good policy, and yet it was once again a right found nowhere in the text of the United States Constitution. In more recent cases, most notably Roe v. Wade, the Court created another new right - the right to abortion that has resulted in tens of millions of unborn children losing their lives.

"To anyone actually interpreting constitutional text, none of these rights have any basis in the language of the Constitution that governs this nation. Indeed, the right to an abortion that these unelected lawyers invented in 1973 found its basis in, and I quote, "penumbras formed by emanations" from other rights enumerated in the Constitution. That's a phrase only lawyers could love - "penumbras formed by emanations." Years later, in reaffirming the right to abortion, in a case called Planned Parenthood v. Casey, Justice Kennedy proclaimed that "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." Unfortunately, in Justice Kennedy's ill-fated attempt to define that sweet mystery of life, the Court determined that that trumps the efforts of elected legislatures to protect actual human lives.

"Justice Kennedy's pop psychology has no basis in the text or history of the Constitution, and yet sadly, it has become the foundation for far too many of the Court's opinions. And I should note, we are now witnessing the shameful results of the Court forcing its own unlimited right of abortion on to the Constitution.

"Two undercover videos of Planned Parenthood show senior Planned Parenthood officials callously, heartlessly, bargaining, haggling over price, selling body parts of unborn children, sipping on wine. Indeed one of those senior officials described she hoped to sell enough body parts of unborn children to buy herself a Lamborghini.

"I will say this, even to supporters of abortion rights, I would encourage every American to watch those videos and simply ask the question: Are those my values?

"It appears that both of those senior Planned Parenthood officials have confessed, in video, to multiple felonies, but that will be a subject for another day and another hearing. But those consequences are the direct consequences of Justice Kennedy's sweet mystery of human life. And each of these unelected lawyers should recognize the fruits of their legislating from the bench, as we now have haggling and bartering, selling the body parts-the tiny body parts-of unborn children.

"Just a few terms ago, the Supreme Court began rewriting the text of Obamacare. It took the word ‘penalty', brought out an eraser, erased that word, and decided the word instead should be ‘tax'. It was a decision where the justices were not acting as umpires, calling balls and strikes, but rather they were putting on a partisan uniform, joining the team of the Obama Administration, and rewriting Obamacare.

"In this term in King v. Burwell those same unelected judges put on those same Obama jerseys and rewrote the statute deciding that the phrase ‘established by a state' means ‘established by the federal government'. Now, make no mistake, this was not law. This was not judging. This was legislating. This was rewriting a statute to meet a policy outcome that five unelected lawyers supported.

"The very next day, five unelected lawyers declared that the marriage laws of all 50 states were now, somehow, transformed into somehow being unconstitutional. That now, somewhere in the Constitution is a right to same-sex marriage.

"Now, the question of same-sex marriage is a question on which reasonable minds can differ. I'm a strong supporter of traditional marriage, of the union of one man and one woman. But from the beginning of this country, the question of marriage has been a question for the states. From the very first Congress through until a month ago it was undisputed that state legislatures have the authority to define marriage, and define it as they always had-as the union of one man and one woman.

"The premise of the court's decision is the rather ridiculous notion that the American people, when they ratified the 14th Amendment in 1868, were somehow silently and unbeknownst to themselves striking down the marriage laws of every state in the union and decreeing same-sex marriage. That's not law. That's not judging. That's policy-making. And I would note, among many commentators, many in the media that like to talk about how they assert the American people agree with this decision; no court decision would have been necessary if that were the case. There's a reason why 40 states have passed laws and constitutional amendments protecting traditional marriage. Because when the people have the opportunity to vote at the ballot box, overwhelmingly the people have voted in support of traditional marriage. Even in bright blue California. When the citizens of California voted on marriage, they voted to preserve traditional marriage. The reason we needed a lawsuit is precisely because the American people, when given the chance to vote, have not voted for this. And so, five unelected judges said to 320 million people, ‘your views on marriage do not matter, we will decree our views instead.'

"If any of us believes in Democracy, if any of us believes in the Constitution and Rule of Law, then whether we agree or disagree with the policy outcomes in these particular decisions, we should be horrified at the notion that five unelected judges can seize for themselves the policy-making authority and take it from the American people.

"We did not establish philosopher kings in this country. We did not establish a rule by unelected elites to seize decision-making authority from the American people. Indeed, that is the very definition of tyranny. Hence this hearing-to discuss what options the American people have to reign in judicial tyranny. The framers of our Constitution were well aware of this threat, they wrote about it considerably in the Federalist papers and elsewhere. And there appears to be growing public support for imposing real limits on the Supreme Court that is disregarding the views of the American people. In a recent Fox News poll 72 percent of registered voters agree that Supreme Court justices should only serve for a limited time. And 62 percent think that Americans should be able to vote justices off the Supreme Court, in light of the lawlessness and judicial tyranny.

"I support all of the above.

"I support every effort to bring power back to We the People, to restore democracy and restore the Constitution. I am open to reasonable proposals on judicial term limits, and I have publicly called for a Constitutional amendment subjecting Supreme Court justices to judicial retention elections. Twenty states follow this practice, and it has had some meaningful success reigning in the abusive judicial power.

"So long as justices on the Court insist on behaving like politicians, acting like a political body and making policy decisions, rather than following the law, they should not expect to be exempt from the authority of the voters who disagree with their policy decisions.

"I call for these reforms reluctantly and sadly, as someone who has spent much of his life in and around the Court, but it is the only reasoned response I believe to justices that have disregarded their oaths of office and have declared that their policy views are somehow more important, somehow more enlightened, somehow more valuable, than your views or my views, or the views of any other American citizen who has a right to go to the ballot box and resolve the issues by the people.

"I know recognize my colleague, the ranking member, Senator Coons."

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