Senator Lee opening statement at SCOTUS hearing

October 12, 2020

Thank you, Mr. Chairman. Welcome Judge Barrett, welcome to your family as well.

Judge Barrett, you and I have a number of things in common. We were both raised in large families; in fact, we’re both one of seven children.

In your case, as I recall, you’re the oldest of seven children – which means that long before you had your own seven children, you were also the de facto mother to many others. The way things often work in large families is such that the oldest child very often takes on responsibilities at an early age.

Those responsibilities have undoubtedly helped you throughout life, establishing leadership roles in your career as a lawyer, as a professor, and now as a judge. Those leadership roles of course mean something different in the judicial branch of government than they do in the executive branch, or in the legislative branch of government.

We’ve heard this morning a number of arguments. They are essentially policy arguments, many of them geared toward actual policies, in some cases actual pieces of legislation. We have to remember that we’ve got three distinct branches of government within our system: We’ve got two that are political – the legislative branch where we work, where we make laws; the executive branch, headed by the president, where the laws are executed, implemented and enforced; and of course, the judicial branch, where you work, where the laws are interpreted, where people come to disagreement as to their meaning.

The branches are sometimes referred to as “equal.” I don’t think this is the best description of them. I think the best description of them is that they are “co-ordinate” branches of government, in that they each exist within their own sphere. They are not equal in the sense that the least dangerous branch was, is, always has been, and always will be the judicial branch – for the simple reason you can’t reach out, you can’t decide where we are going to go today or tomorrow.

The judiciary is confined solely to those cases and controversies brought to your jurisdiction. You look not into the future, but in the past. You see the world, as it were, through a rearview mirror. Your job is to decide what the law says when people disagree as to the law’s meaning. Those laws consist of words, those words used in a particular combination, in a particular context, at a particular meaning on the day of their enactment, or their incorporation into the Constitution, and that’s your job.

And yet if you were watching today’s hearing, and some of the statements made by some of my colleagues, in fact if you were to look at any of the countless posters put up in here, you would think that this was a political discussion, a policy discussion, a legislative discussion.

You in fact are not being reviewed for a legislative position, or policy making position. You’re being reviewed for a position on our nation’s highest court – where you’ll be asked from time to time to decide cases based on the law, based on the facts.

This is not something that should result, or properly should be considered, by us – something that requires us to examine whether to what extent, in what way, you have compassion for any of the individuals depicted in these photos. I’m certain, just based on my limited interaction with you, that you have compassion for all people.

But this isn’t the question, nor is the question before us whether you would agree or disagree as to any particular policy embedded within any particular statute. You understand this isn’t your job – not as a judge on the U.S. Court of Appeals for the Seventh Circuit where you now sit, nor would it be if you were to be confirmed as an Associate Justice to the United States Supreme Court.

One might also have the impression from watching this morning’s proceedings so far that the Supreme Court of the United States is a remarkably bitter, cynical, and overwhelmingly partisan place. It is not. You and I have both clerked at the U.S. Supreme Court, and we both know that if you actually look at the numbers, you’ll see something remarkable.

Despite its flaws, and despite the fact that it sometimes makes mistakes, the Supreme Court of the United States sits atop something that is the envy of the entire world: a judicial system, that despite the fact that it is run by human beings and is therefore imperfect, is the best judicial system that has ever existed on planet earth.

One of the many ways in which this is manifested is if you look at the nine members of the Supreme Court and the fact that they come from different backgrounds; they’ve been appointed by different presidents; they’ve come at it with somewhat different judicial philosophies, to the extent that some of them have indicated what their political leanings might be; they indicate that they come from different political backgrounds as well.

And yet, the most common configuration of a Supreme Court decision is not five-to-four, not even six-to-three, it is in fact nine-to-zero, eight-to-one, and seven-to-two that make up the vast, overwhelming majority of all Supreme Court decisions.

Now this is especially remarkable when you consider the fact that the Supreme Court typically takes up only those cases, those rare cases, as to which lower courts have been unable to reach an agreement when interpreting the same, finite provisions of federal law, of federal statute, or a provision of the United States Constitution. Multiple lower courts, very smart men and women from around the country – highly specialized, skilled in their trade – have been unable to reach the same conclusion as to the meaning of the same group of words. Then and only then does the Supreme Court tend to take up those cases.

And yet, the Supreme Court overwhelmingly decides those cases either unanimously or near unanimously – and without these partisan divisions, that one from watching this hearing would think is the bread and butter of the Supreme Court’s work. The five-to-four configuration is actually relatively rare. When it does arise, it’s not even always involving a hot button political issue.

Most of the Supreme Court’s docket doesn’t even consist of the hot button issues. A whole lot of it consists of stuff that I find really, really fascinating, like the dormant Commerce Clause. I mean, what American doesn’t sit up late at night and stew over whether it’s okay for a state or a political subdivision thereof to treat an article of commerce differently based on its origin or destination out of state or outside of the United States?

This of course, is the kind of case that comes before the Supreme Court and might from time to time be decided on a five-to-four basis, but not necessarily along the lines that one would predict based on the appointment of each justice and the political party of each justice’s appointing president.

There are of course some decisions that are politically charged and that Americans do worry about more than others, that might affect more Americans, let’s say, than a decision about waste disposal in the context of the dormant Commerce Clause. I understand that, I get that. But there too, we can’t overstate or overplay the role the Supreme Court of the United States might exert in that context.

Even in those circumstances, when the Supreme Court rules that something has been done in a way that is not constitutional, it doesn’t mean that that’s the end of the policy road there. Sometimes it might mean that the wrong government acted. Sometimes it might mean that the federal government acted where a state should have, or the other way around. Other times it might mean that the wrong branch of government acted. Other times it might mean that they went about it the wrong way. There is nearly always another way around a particular policy concern.

Whether we are talking about healthcare, whether we are talking about privacy and individual liberty, each and every person serving anywhere in our government has an obligation to look out for the best interest of those they represent. In fact, each and every person serving as an officer in the United States government is required under Article 6 of the Constitution to take an oath to uphold and protect and defend the Constitution of the United States.

The Constitution, in short – this document written nearly two and a half centuries ago, that has helped foster the development of the greatest civilization the world has ever known – is not just a judicial thing. This is a thing that works, and works best when every one of us reads it, understands it, and takes and honors an oath to uphold it and protect it and defend it.
When we do our jobs in this branch, when our friends in the executive branch do their jobs, it requires us to follow the Constitution just the same way.

These tactics of creating fear and uncertainty and doubt, these tactics that result in relentless protests outside of the one branch of government that isn’t political, astound me; but they dismay me and they disappoint me. They reflect the fact that we have allowed for the politicization of the one branch of the federal government that is not political.

We can turn that around. We ourselves within the legislative branch have got to do a better job, by focusing on the fact that the Constitution is not just a judicial thing – it’s also a legislative thing, it is also an executive thing, it is an American thing.

It’s one of the many reasons why I will object anytime anyone tries to attribute to you a policy position and hold you to that. You are not a policymaker; you are a judge. That’s what we’re here to discuss.

Thank you very much, Mr. Chairman.