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Floor Speech

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Mr. THUNE. Mr. President, the Supreme Court finished up its term recently by releasing several decisions that did not result in the Democrats' preferred outcomes. The hysteria was instant and, unfortunately, predictable.

``Disappointing and cruel,'' the Senate Democratic leader chastised one decision.

``Unacceptable and indefensible'' said another Democratic Senator.

``Horrifying'' was another response from a Democratic Senator.

Then there was the President of the United States who said:

This is not a normal court.

Not a normal court--never mind the fact that this Court, like others before it, is composed of nine Justices duly nominated and confirmed in accordance with the Constitution, sitting and interpreting the law. Apparently, the fact that this Court has issued decisions Democrats disagree with makes this ``not a normal court.''

Well, here is the list of thoroughly unradical decisions that have so horrified members of the Democratic party: The Court ruled that universities cannot make admissions decisions based upon the color of someone's skin. The Court ruled that the President does not have the right to create a massive student loan forgiveness program without clear authority from Congress. The Court ruled that the First Amendment does actually protect Americans from being forced by the Government to speak messages with which they disagree.

These are the rulings that Members of the Democratic party consider ``cruel and indefensible.''

Continuing with the theme of Democratic hysteria, the Democratic leader said on Sunday that the Supreme Court had achieved ``dangerous'' and ``regressive'' policies ``completely at odds with what the vast majority of Americans want.''

Now, I am not sure he has that quite right. I know the recent decisions are at odds with what the Democratic party wants, but the vast majority of Americans do not seem to be at odds with the Court's decisions. Take the Court's decision in favor of the First Amendment. It turns out that more Americans support that decision than oppose it. The same goes for the Court's student loan decision.

Public opinion is decidedly in favor of the Court's decision ruling that the Constitution does not allow universities to make admissions decisions on the basis of race. One poll found that 52 percent of the American people approve--approve--of the Court's decision, while just 32 percent disapprove. Another poll found that 59 percent of Americans approve of the Court's decision, while just 27 percent disapprove.

It seems that the Court is a lot more in line with Americans than the Democratic party would like to think.

Let me offer a few more statistics about this supposedly abnormal court. Let's put things in context here for just a moment.

Nearly half of the cases decided by the Supreme Court in this term were decided unanimously--almost half. That means that all of those ``extreme'' Republican-nominated Justices and all of the Court's Democrat-nominated Justices were in unanimous agreement almost half the time.

That is not all. At least one of the Court's so-called liberal Justices was in the majority in more than 80 percent of cases. That means that more than 80 percent of the time, at least one liberal Justice agreed with the Court's conservatives. It kind of makes the Supreme Court seem not very extreme. Eighty percent of the decisions had Justices from so-called both sides--conservative and liberal sides.

Yes, there have been a handful of decisions where all of the liberal Justices have disagreed with the majority opinion. But that is hardly unprecedented. There have been plenty of cases in previous years where most or all of the so-called conservative Justices have disagreed with the majority opinion, and I don't remember Democrats having any problems with the legitimacy of those outcomes.

Democrats' utter hysteria in the face of some pretty mainstream Supreme Court decisions could almost be amusing, but it is not, because Democrats' rhetoric and proposed response to a Supreme Court that issues decisions they disagree with has crossed a line.

Now, I completely respect Democrats' right to be upset at and disagree with Supreme Court decisions. I disagreed with quite a few myself. But there is disagreement, and then there is attempting to undermine a branch of our government. And Democrats are engaged in the latter.

Over and over, Democrats' responses go beyond disagreement or outrage at the Court's decisions and cross the line into attacking the Court's legitimacy.

A number of Democrats have gone even further, directly or indirectly calling for expanding the Court or otherwise altering it to create a Court that will rule in line with where Democrats think it should be.

It is difficult to overstate just how dangerous Democrats' rhetoric is. Democrats are not only fostering a sense of distrust about a Court that is completely legitimate in every way--save for the fact the Democrats don't like some of its decisions--that they are proposing so- called solutions that would permanently and completely destroy faith in the Supreme Court as an impartial interpreter of the law.

Do Democrats seriously imagine that their proposal to ``restore faith'' in the courts would do anything but further divide the American public and encourage one half of the population to regard the Court as an arm of the Democratic Party?

Do Democrats seriously think they could pack the Court with their preferred Justices and not set off a permanent battle in which the party in power adds or subtracts Justices to achieve what it decides is balance?

If Democrats have their way, we will be looking at a future in which the Supreme Court is nothing but an arm of the party in power in the other two branches, with the number of Justices constantly changing to achieve the governing party's preferred outcomes.

There are names for systems of government in which the party in power controls the outcome in the courts. They are names like ``dictatorship'' and ``despotism.'' Not getting your way at the Supreme Court is a pretty poor reason to undermine our system of government. But I am starting to wonder just how well Democrats understand our system of government, given their apparent belief that the outcome should always be in their favor. That is not the way it works in our democratic Republic.

In our system of government, you win sometimes and you lose sometimes. When you lose, you fight hard to gain ground and persuade others of the rightness of your position. You do not--you do not-- attempt to rig the system so the outcome will always be in your favor. Hopefully--hopefully--you do not set out to undermine faith in the system by suggesting that any outcome that you don't like is not just incorrect but illegitimate.

It is deeply disturbing that so many Democrats and Democratic leaders are participating in this campaign to attack the legitimacy of the Supreme Court. I hope--I truly hope--that cooler heads will prevail before they do permanent damage to our system of government.

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