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Separation Of Powers

Floor Speech

Location: Washington, DC

Mr. SPECTER. Mr. President, I have sought recognition to again alert my
colleagues to what I consider to be a very important matter, and that is that the Supreme Court of the United States is materially changing the traditional separation of powers and that, as a result, the Congress of the United States continues to lose very substantial power in the Federal scheme under the Constitution of the United States. This is a theme I have submitted over the course of the last 30 years, since 1981, with the confirmation proceedings of Justice Sandra Day O'Connor. And in now the 12th proceeding that I will personally have participated in, I raise this issue again to urge my colleagues to take a stand.

The only opportunity we have to influence the process is through the confirmation of Supreme Court Justices. But we have witnessed a series of cases where instead of the traditional doctrine of separation of power, there has been a very material concentration of power which has gone principally through the Court and secondarily to the executive branch.

The Framers put the Congress under Article I. It was thought at the time the Constitution was adopted that Congress would be the foremost branch representing the people. The executive branch is Article II, and the judiciary branch is Article III. Were the Constitution to be written today, I think we would find the course inverted. But what we have seen here is that recent decisions of the Supreme Court have abrogated the traditional deference given by the judicial branch to findings of fact and the determination of public policy arising from what Congress finds in its extensive legislative hearings, with the Court substituting its judgment with a variety of judicial doctrines. During the confirmation process where we examine the nominees, we continue to receive lip service about congressional authority but, once confirmed, we find that the nominees have a very different attitude and engage in very substantial jolts to the constitutional law in effect.

The generalized standard for what would be the basis for upholding an act of Congress was articulated by Justice Harlan in Maryland v. Wirtz in 1968 interpreting the commerce clause, saying:

Where we find that the legislation as a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.

That is the general legislative standard which had been adopted by the Court in reviewing acts of Congress until the case of City of Boerne v. Flores in 1997. There, the Supreme Court adopted a new standard. They articulated it as congruence and proportionality, with the Supreme Court of the United States reviewing the act of Congress to decide whether it was congruent and proportional to what the Congress sought to achieve, and that entailed an analysis of the record, giving very little deference to what Congress had found.

On its face, the standard of congruence and proportionality suggests that the Court can come out anywhere it chooses. That was the view of a very strong dissent by Justice Scalia in a subsequent case, where he said:

The congruence and proportionality standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking.

So that when you take a standard of that sort and undercut the traditional deference to congressional fact-finding, you end up with the Court making law instead of interpreting law. Under that decision, we have seen a whole torrent of Supreme Court decisions declaring acts of Congress unconstitutional. Illustrative are the Morrison case, involving the Violence Against Women Act, the Garrett case under the Americans With Disabilities Act, and repeatedly the issue was undercut.

As a result, in the confirmation hearings, many of us--this Senator included--sought to establish an understanding of a nominee's approach to giving the deference to congressional findings. Illustratively--and I have spoken on this subject before--Chief Justice Roberts and Justice Alito used all the right language, but when we find the application of the language, they have done a reverse course. Justice Roberts spoke eloquently about the need for modesty and for the Court not to jolt the system, but to follow stare decisis. With respect to fact-finding, this is what Chief Justice Roberts had to say in his confirmation hearing:

I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact finding, development of a record, and also the authority to make the policy decisions about how to act on the basis of a particular record. It's not just disagreement over a record. It's a question of whose job it is to make a determination based on the record. ..... [A]s a judge, you may be beginning to transgress into the area of making a law ..... when you are in a position of re-evaluating legislative findings, because that doesn't look like a judicial function.

So there you have a very flat statement by the nominee saying that it is not the Court's role to transgress into the area of lawmaking, which is what does happen in reevaluating legislative findings.

Justice Alito said about the same thing. This is his testimony in his confirmation hearing:

I think that the judiciary should have great respect for findings of fact that are made by Congress. The judiciary is not equipped at all to make findings about what is going on in the real world--not these sort of legislative findings. And Congress, of course, is in the best position to do that. Congress can have hearings and examine complex social issues, receive statistical data, hear testimony from experts, analyze that and synthesize that, and reduce that to findings. And when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect.

The decision in Citizens United found the Court reversing recent decisions in the Austin and McConnell cases. Instead of giving the deference to the congressional findings, which was articulated by Chief Justice Roberts and Justice Alito, they did an about-face.

In raising this consideration, I do not challenge the good faith of Chief Justice Roberts or Justice Alito. I recognize and acknowledge the difference between testifying in a confirmation hearing and what happens during the course of a decision when deciding a specific case in controversy. But when we take a look at what happened in Citizens United--and again, this is a matter of the illustration--we have the enormous record that was created by the Congress in enacting McCain-Feingold and the findings of fact there to support what the Congress did, which was invalidated by the Supreme Court of the United States in Citizens United, which upset 100 years of precedent in allowing corporations to engage in political advertising.

The scope and detail of the congressional findings were outlined by Justice Stevens in his dissenting opinion in Citizens United. The statement of facts by Justice Stevens on commenting on the record is not a matter of disagreeing on opinions. People are entitled to their own opinions but not to their own facts, as has been reiterated so frequently. This is what Justice Stevens noted on the congressional fact-finding:

Congress crafted in the McCain-Feingold legislation ``in response to a virtual mountain of research on the corruption that previous legislation failed to avert.'' The Court now negates Congress's efforts without a shred of evidence on how section 203 or its State law counterparts have been affecting any entity other than Citizens United.

Justice Stevens said this to emphasize not only that the Court's holding ran counter to outstanding congressional judgment but also ``the common sense of the American people,'' who have recognized a need to prevent corruption from undermining self governing since the founding and who have fought against the distinctive corrupting potential of corrupt electioneering since the days of Theodore Roosevelt.

Justice Stevens went on to point out that the record compiled in the context of the congressional legislation was more than 100,000 pages long. He noted that judicial deference is particularly warranted, whereas here we deal with the congressional judgment that has remained essentially unchanged throughout a century of legislative adjustment.

Now, as a result of what happened in Citizens United, we found that, illustratively, Chief Justice Roberts did substantially differently when on the Court in contrast with what he did in his confirmation hearing. In the confirmation hearing, Chief Justice Roberts did acknowledge that the act was a product of an ``extraordinarily extensive legislative record.''

``My reading of the Court's opinion,'' Chief Justice Roberts went on, ``is that was the case where the Court's decision was driven in large part by the record that had been compiled by Congress. The determination there was based on the extensive record carrying a lot of weight with the justices.''

The matter was particularly problemsome. As Justice Stevens noted:

The Congress relied upon the decision of the Supreme Court in the Austin case.

Stevens noted that overruling Austin was especially significant because Congress had specifically relied on that decision in drafting the McCain-Feingold Act.

So essentially what you have here is relatively recent decisions by the Supreme Court of the United States in Austin and McConnell. You have a very extensive congressional record, which sets forth the factors about the need to avoid corrupt practices and electioneering brought about by money and, beyond the actual corrupt practices, the appearance of corruption, and the legislative effort to set this kind of a factual basis. And you have Justices in confirmation hearings committing to respecting and being deferential to congressional findings. But when the decision comes, 100 years of precedent is overturned. You don't have a modest decision; you have a decision which jolts the system.

It is a difficult matter where we proceed candidly as to where we go beyond getting the most positive assurances we can from the nominees. I suggest to my colleagues that when we begin the confirmation process with Solicitor General Kagan next week, this should be a focus of attention because what is happening is that the power of Congress is being diluted. If you have legislative findings that go for 100,000 pages and then you have Justices who have under oath said that they will give deference to congressional findings; you have Congress enacting the McCain-Feingold law based upon the standards set by the Supreme Court of the United States in the Austin case; you have the relatively recent precedents of Austin and McConnell, for instance, the Federal Election Commission; and then you have a case like Citizens United coming down, that ought to be a sharp focus of attention.

My sense is that the reality is that this body and our counterpart across the Rotunda pay relatively little attention to what the Supreme Court of the United States does. They have the final say. It is often noted that they are right only because they are final. When we have an opportunity, through the confirmation process, to focus on these issues, I suggest to my colleagues that it is high time we do so.

There is a second area where the authority of Congress has been very materially undermined. It has been where the Supreme Court of the United States declines to decide cases. We have a situation where the Court hears and decides relatively few cases. This is against the backdrop where, historically, the Supreme Court of the United States decided many more cases. Going back to 1886, the Supreme Court of the United States had on its docket 1,396 cases and decided 451 cases. In 1987, the Supreme Court issued 146 majority opinions. In 2006, less than 20 years later, the Supreme Court heard arguments in only 78 cases and handed down opinions in only 68 cases. A year later, 2007, the Supreme Court heard arguments in 75 cases and handed down opinions in only 67 cases. In 2008, arguments in 78 cases, decisions in 65 cases. This is in a context where Chief Justice Roberts testified in his confirmation hearing that he thought the Court ought to hear more cases.

In a letter I will submit for the Record, there is a detailing of the tremendous number of important circuit splits where the Supreme Court of the United States does not decide which circuit is correct or you have one circuit deciding a case one way or another circuit deciding a case another way, and then the situation arises in yet a third circuit, and there is no guiding precedent. There is confusion, and I suggest that the Court really has the duty to take up these circuit splits and make a definitive decision so that the law is clarified, so that litigants and lawyers can know where the law stands on a specific case. Stated simply and directly, the Court is not too busy to take up these circuit splits.

There are other major cases where the Court declines to hear cases, which I respectfully submit that the Court ought to hear. Illustrative of one of the major constitutional conflicts in the history of the United States has been the controversy over warrantless wiretaps. You have the Foreign Intelligence Surveillance Act of 1978, which in very emphatic terms says the exclusive way a wiretap may be obtained would be through a warrant, where the Federal investigative authorities filed an affidavit of probable cause with a Federal judge or a Federal magistrate, and only after that permission is granted may the wiretap be activated.

That is to protect the very basis of privacy and the very strong interdiction of the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure.

It has been 5 years since it was disclosed that the executive branch, under the so-called Terrorist Surveillance Program, was undertaking warrantless wiretapping. The activity was being undertaken under the contention that the President had power as Commander-in-Chief, executive authority under Article II to disregard the act of Congress.

It is standard hornbook law. The Congress cannot legislate in violation of the Constitution. But if, in fact, the President of the United States, under certain circumstances, has the authority as Commander-in-Chief to engage in conduct, Congress may not proscribe it, may not eliminate it, may not limit the power of the President that the President has under constitutional authority.

But 5 years have passed and there has been no decision in the case. A Federal district court judge in Detroit declared the act unconstitutional. The case was appealed to the Court of Appeals for the Sixth Circuit, and in a 2-to-1 decision the court decided that there was no standing, which is a popular doctrine for declining to hear a case and ducking the issue.

I believe any fair analysis of the opinion of the court of the dissenting opinion gave much additional weight to the dissenters or, in any event, a very close question, one of paramount importance that ought to have been decided by the Sixth Circuit.

The case was then taken to the Supreme Court of the United States, which denied certiorari. Those issues are still very much in play.

In a case in the U.S. district court in San Francisco, Judge Vaughn Walker has declared the act unconstitutional. It is questionable whether that is a final ruling in the case. But the Supreme Court of the United States, with as many law clerks as they have--four and five each; many more than they have had in earlier days--and with the very light docket they have, there is no reason that a case such as the Terrorist Surveillance Program should not be adjudicated by the Supreme Court so we would know what the law was on that subject.

Another case which I have spoken about on the floor of the Senate involves the litigation brought by survivors of the September 11 attacks on the United States where some 3,000 people were killed. A lawsuit was begun to get damages from the Government of Saudi Arabia, from five Saudi princes, from a Saudi charitable organization which was an instrumentality of the government, and other defendants.

The Congress of the United States in the sovereign immunity law specifically decided that the sovereign should not have immunity in any case where there was a domestic tort involved, such as the conduct involved in 9/11.

The Court of Appeals for the Second Circuit decided the legislation did not apply because it applied only in situations where a nation had been declared a terrorist state. That exception is nowhere in the statute. It had no place in the decision.

When application was made for certiorari to have the case considered by the Supreme Court, the Solicitor General's Office, headed by Solicitor General Kagan, took the position that the Second Circuit was wrong but urged the Court not to take the case on the ground that there were important foreign policy questions involved. Solicitor General Kagan took the position that where no acts occurred within the United States, the Foreign Sovereign Immunities Act did not apply.

Again, this reading was pulled literally out of thin air. Nothing in legislative history or background would suggest that the victims of 9/11 ought not have a case against the Government of Saudi Arabia and the princes and the charitable organization, an instrumentality of the state. Under those circumstances, no distinction between the acts occurred, but there was plenty of repercussion and plenty of consequence from that tortious conduct when America was attacked. Here the Supreme Court of the United States has denied to hear the case, which leaves the Congress subservient to the executive branch.

The business about being deferential to foreign powers, in my judgment, is not an adequate basis for disregarding the legitimate claims of the people who were killed on 9/11, not sufficient to disregard the congressional enactment which held that there ought not to be sovereign immunity where there is tortious conduct involved; that the doctrine of sovereign immunity ought to apply to commercial transactions but not to conduct such as was evidenced on 9/11.

Again, we have as an adjunct of what happens when the Court disregards congressional findings. You have the action of the Court in declining to hear cases such as the Terrorist Surveillance Program, such as the litigation brought by the survivors of the victims of 9/11 where the authority of Congress is materially undercut.

There has been other action taken by the Supreme Court of the United States. It is hard to pick the description which is sufficiently forceful, whether it is surprising or whether it is astounding. But litigation was brought in a case captioned McComish v. Bennett where the district court in Arizona held that Arizona's Citizens Clean Elections Act was unconstitutional.

In that case, the State of Arizona had decided to provide for matching funds in order to deal with the problems of campaign financing, trying to deal with the issues of corrupting influence of money, both the fact of corruption and the appearance of corruption.

I am not going to take the time now to go through the long list of cases where Members of Congress have been convicted of illegal campaign contributions which rose to the level of being a quid pro quo and a bribe. But the Federal district court in Arizona said the Arizona legislation, captioned the Citizens Clean Elections Act, was not supported by a compelling State interest, not narrowly tailored, and not the least restrictive alternative and, therefore, was unconstitutional under the First Amendment.

The Court of Appeals for the Ninth Circuit reversed saying there was an ample record to support the legislative enactment.

On June 1 of this year, 20 days ago, the Supreme Court of the United States denied an application to vacate the stay. The Court of Appeals for the Ninth Circuit had stayed the decision of the district court so that the Arizona elections could go forward pursuant to the Arizona Citizens Clean Elections Act.

When the Ninth Circuit heard the case, the Ninth Circuit issued a stay that stopped the carrying out of the district court decision on unconstitutionality so that the elections in Arizona this year could proceed under that act. The losing parties in the Ninth Circuit decision then applied to the Supreme Court to eliminate the stay so the district court opinion would remain in effect.

The Supreme Court, on June 1, denied the application to vacate the stay ``without prejudice to a renewed application if the parties represent that they intend to file a timely petition for a writ of certiorari.''

A week later, the Court reversed course and granted the application to vacate the stay on the district court's injunction ``pending filing and disposition of a petition for writ of certiorari.''

This is complex legalese, but what it does is reinstate the conclusion of the Federal district court in Arizona that the Arizona law is unconstitutional and may not be enforced.

It is a little hard to fathom how the Court can do that without even the filing of a petition for a writ of certiorari.

What we essentially have is the Supreme Court was deciding the Arizona case without the submission of a petition for a writ of certiorari, without following the rules of the Supreme Court for the filing of briefs, or without an argument before a decision was made. It has all the earmarks of a flagrant denial of due process of law.

It is true technically that the Supreme Court may reverse and remand and enter judgment as they choose. But in a contest where the procedures are established, in case after case the practice of the Court--you want to have the Supreme Court of the United States review a case? File a petition for writ of certiorari. Then you have to prepare a brief, then you appear before the Court for argument, and then the Court makes a determination, after hearing the case, what ought to be done.

Here we have the Arizona elections disrupted by a conclusion of the Supreme Court of the United States. It is not even a judgment. It is a reinstatement of a stay.

We have the Supreme Court of the United States today on issues of enormous importance--the election of Federal, State, and local officials, an Arizona law trying to deal in a sensible way with the problems of having candidates spend so much of their time on electioneering. A recent study showed those of us in Congress spent about 25 percent of our time on raising money. I think that is a fairly realistic estimate. I think I saw an affirmative nod from the Presiding Officer, the Senator from Virginia.

I would say that is not much off the mark from my own experiences. My first campaign cost less than $2 million, and the last campaign cost some $23 million. We all have offices away from our office so we comply with the law which prohibits us from making telephone calls to raise money or undertaking any of it on Federal property. It takes a lot of time.

We have a number of former Members of Congress who are in jail today across this land, and we have a lot of public skepticism about the influence of money on congressional decisions. We had eight Members of the House of Representatives in one of the Hill newspapers last week about an investigation of a House Ethics Committee where there was an appearance of some issue where votes were changed in the wake of campaign contributions.

Here we have the Supreme Court eliminating the Arizona law without even having a hearing in the case but reinstating the stay. That is a subject I intend to ask Nominee Kagan about next week.

I have submitted a series of letters to Solicitor General Kagan, one dated May 25, one dated June 15, and I am sending another one today, and I ask unanimous consent to have printed in the Record the full text of these letters.

There being no objection, the material was ordered to be printed in the Record


Mr. SPECTER. Mr. President, a good bit of the substance of the questions
which I have been directing toward Solicitor General Kagan involves the question as to whether she would have voted to grant cert. I believe that is an appropriate question, whether she would agree that a case ought to be heard. There is a view that questions ought not to be asked as to what a nominee would do once a case is pending before the Court. I think even that doctrine has some limitations. I think cases such as Brown v. Board of Education, cases such as McCulloch v. Maryland, cases which are well established in the law of the land, ought to be the subject for commitment. But I think there is no doubt--in my opinion, there is no doubt--we should ask her whether she would take a case such as the Terrorist Surveillance Program, or a case such as the litigation involving the claims brought by the survivors of victims of 9/11.

The hearings next week on Solicitor General Kagan will give us an opportunity to move deeply into a great many of these important subjects. While it is true that in many instances we do not get a great deal of information from the nominees, I think the hearings are very important to inform the public as to what goes on with the Court. This is in line with the efforts which I have made to provide for legislation which would call for televising the Supreme Court. The Judiciary Committee has twice passed out of committee, by significant votes--once 12 to 6 and once 13 to 6--legislation which would call for the Supreme Court to be televised.

The Congress of the United States has the authority to make directives on administrative matters--things such as how many Justices constitute a quorum, when they begin their term, how many members there are of the Supreme Court. Congress has the authority to mandate what cases the Supreme Court will hear, and--in the cases which I intend to ask Solicitor General Kagan, such as the terrorist surveillance program--whether she would have granted cert.

There are underlying concerns, which I have raised today, of a certain disrespect which characterizes a good many of the Supreme Court opinions. For example, the opinion by Chief Justice Rehnquist in striking down the legislation protecting women against violence, notwithstanding a very voluminous record--a radical change in the interpretation of the Commerce Clause--where the Court, through Chief Justice Rehnquist, said that the Court disagreed with Congress's ``method of reasoning.''

It is a little hard to understand how the method of reasoning is so much improved when you move across the green from the Judiciary Committee hearing room past confirmation; or where you have the language used by Justice Scalia--and I have quoted some of it earlier--in the case of Tennessee v. Lane, where Justice Scalia had objected to the congruence and proportionality standard, which he said was a flabby test and a standing invitation to traditional arbitrariness and policy decisionmaking.

Then he went on to criticize his colleagues for, as Justice Scalia said, inappropriate criticism of an equal branch. This is what he had to say about the proportionality and congruent standard.

Worse still, it casts this court in the role of Congress's taskmaster. Under it, the courts--and ultimately this Court--must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill-advised to adopt or adhere to constitutional rules that bring us into constant conflict with the coequal branch of government. And when such conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test of congruence and proportionality that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed.

So that is fairly strong language in disagreeing with what the Court has done in establishing the test. And Justice Stevens minced no words in his criticism of Citizens United in saying that the decision by the Supreme Court showed a disrespect for Congress. There the Court, in Citizens United, overruled both McConnell v. Federal Elections Commission and the Austin case. Overruling Austin was very significant, Justice Stevens noted, because Congress specifically relied on that decision in drafting McCain-Feingold. Justice Stevens then said that pulling out the rug beneath Congress in this matter ``shows great disrespect for a coequal branch.''

Well, my colleagues, the Congress has an opportunity to assert itself, to demand the appropriate respect which the Constitution calls for and has been implemented under the doctrine of separation of powers. We can find ways to make sure that commitments about respected congressional fact-finding will be observed, or that the rule of stare decisis will be respected; that when there are major decisions coming before the Supreme Court of the United States which involve the power of Congress vis-a-vis the executive branch, that those decisions will be made.

So let's sharpen our lines of questioning, colleagues, as we move forward to the hearings on Solicitor General Kagan a week from today.

I thank the Chair, and I yield the floor.


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