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Floor Speech

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Mr. DURBIN. Mr. President, it was 11 years ago that I wrote a letter to John Roberts, the Chief Justice of the Supreme Court--11 years ago-- asking him a basic question: Mr. Chief Justice, why is it that you believe the nine Justices that sit on the Supreme Court should be treated differently than any other person in Federal Government when it comes to a code of ethics?

I didn't receive a reply to that letter. We know what has happened since. Through private investigations and investigations by journalistic organizations, we have come to discover that at least one sitting Supreme Court Justice--Clarence Thomas--has received more than $4 million in gifts from billionaires. What kind of gifts? Travel, jet airplane travel, travel on yachts, long-term vacations--worth more than $4 million, largely undisclosed to the American public.

What is going on here? A Justice on the Supreme Court receives over $4 million in gifts from billionaires and doesn't disclose it to the public? What about other Federal judges in like circumstances? Do they have requirements when it comes to the gifts they can accept and what has to be disclosed? Of course they do--in detail. It is only the nine Supreme Court Justices that exempted themselves from the basic, enforceable, transparent code of ethics that applies to every other Federal judge in America.

So when my friend from South Dakota comes to the floor and says we are being too critical of the Supreme Court--$4 million in gifts? If any Member of the Senate received that kind of largesse, they would be held responsible for it under the law--and should be.

Secondly, this notion that being critical of the Supreme Court is somehow critical of the institution, I do raise questions--and I will in the statement I am about to make this morning--as to some of the most recent decisions. I think they are terrible. I think that in terms of their impact on the future of the Court and the future of the Constitution, we have legitimate concerns that should be raised. But to raise those questions is not to attack the integrity of the institution of the Court but the process and the decisionmaking that the Court has made.

Of course, throughout history, there have been times when the Court just plain got it wrong--Plessy v. Ferguson, a case which dominated for decades and said that separate but equal was acceptable under the law. It wasn't until Brown v. Board of Education in the 1950s that they finally reversed that. For decades, Plessy--this terrible, wrongheaded decision--governed the administration not only of justice but of education in America. It damaged and destroyed lives right and left. Were people critical of it? Yes. And they should have been.

We are living in a democracy with freedom of speech, and we should be able to express ourselves when we have serious misgivings about decisions by the Court.

I want to address two recent decisions by this Court that I think really deserve special attention.

The Court recently finished its term with a series of disastrous decisions that once again upended our constitutional landscape.

The Court's radical, conservative supermajority discarded decades of longstanding precedent to protect rich and powerful interests. The Court's decisions will immunize Presidents who commit crimes. Let me repeat that. The Court's decisions will immunize Presidents who commit crimes, make it harder to prosecute corrupt politicians, and make it easier for corporate special interests to overturn Federal protections that Americans need to remain safe and healthy.

Meanwhile, the Court's conservative supermajority failed to protect some of the most vulnerable, upholding laws that criminalize homelessness and denying Americans the right to challenge the government when their immigrant spouses are denied a visa.

The far-right Justices responsible for these decisions may claim they are guided by ``textualism'' or ``originalism''--we hear those terms frequently--but the reality is that they are engaged in judicial activism, pure and simple.

The Justices are cherry-picking their way through constitutional text and history to impose their own ideological agenda on the American people. In doing so, the majority has not only further damaged the Court's institutional integrity, they have undermined our democracy.

Start with the Court's rulings in Loper and Relentless. In these cases, the Court overruled Chevron v. Natural Resources Defense Council, a landmark, 40-year-old decision holding that courts must provide deference to an Agency's reasonable interpretation of ambiguous Federal law.

With authorization from Congress, scientists, engineers, and other experts at these Agencies use their expertise to establish rules that help to ensure that our food is safe, that medications are effective as promised, that we have clean air and water, stable financial markets, fair working conditions, and more. But after the Court's decision to overrule Chevron, unelected judges with no expertise will be empowered to overturn rules issued by Agency experts when they are challenged by corporations.

In another case, Ohio v. EPA, Justice Neil Gorsuch inadvertently demonstrated how ill-equipped the Justices on the Court are to substitute their judgement for Agency experts. In an opinion siding with Republican States that challenged an EPA pollution control plan, Justice Gorsuch repeatedly--repeatedly--and incorrectly referred to nitrous oxide, which is laughing gas, as we know, rather than nitrogen oxide, the pollutant the EPA is seeking to control. So the Court was arguing that the Agencies didn't have the power to make these decisions in detail and failed to describe properly the entity that was being regulated by the EPA.

The Court's decision giving Justices like Justice Gorsuch the power to second-guess these Agency experts is a body blow to our government's ability to protect the health and safety of the American people.

In another misguided opinion, the Court's six Republican-appointed Justices ruled in Trump v. United States that a President may be immune from criminal prosecution for abusing the power of government for personal or political gain.

This case is unimaginable.

Specifically, the Court held:

[T]he nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.

Not only does the decision bar prosecuting a President for any official act, it prohibits prosecutors even from using any official act as evidence to help prove a President engaged in illegal unofficial acts.

And, in ruling that Donald Trump is ``absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,'' the Court has given a green light to a future President to use the Justice Department for corrupt purposes.

The Justice Department, whose mission is to enforce the law, defend the interests of the United States, and ensure public safety, will no longer enjoy its traditional independence. It could, instead, serve as a weapon to be wielded by a corrupt President.

So what does all of this mean?

It means that a corrupt President may hide behind their office for protection from prosecution, under the law, for even the most egregious wrongdoing.

It means the Supreme Court's conservative majority has effectively endorsed Richard Nixon's infamous claim that ``when the president does it . . . that means that it is not illegal.'' In fact, much of the conduct at the heart of Nixon's Watergate scandal could, arguably, be considered official acts, making them presumptively immune under the current interpretation.

And, in the aftermath of Trump v. United States, a court would not even have been allowed to question Nixon's motives in order to have determined whether he acted unlawfully.

The Court's ruling has also left Congress and the judicial branch with limited options when dealing with a delusional or a corrupt executive.

The minority leader stated during the second Trump impeachment trial:

We have a criminal justice system in this country. We have civil litigation, and former presidents are not immune from being accountable by either one.

Unfortunately, this is no longer the case because the Court's conservative majority has demolished the ability to hold any President accountable for abuses of power.

It was not long ago that then-Judge Roberts sat before the Senate Judiciary Committee and told me directly and personally:

No man is above the law.

Then-Judge Gorsuch also testified, and he said:

Nobody is above the law in this country.

And then-Judge Kavanaugh told the committee:

No one is above the law. And that is just such a foundational principle of the Constitution and equal justice under the law.

But now they seem to think that a corrupt President is, in fact, above the law.

When the American people head to the polls this November, they should keep this case, Trump v. United States, in mind. We must ensure that our next leader is a person who will respect the rule of law even though he is now, because of this Supreme Court decision, immune from prosecution.

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