With Prejudice: Supreme Court Activism and Possible Solutions, Hearing Before the Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, Committee on the Judiciary, U.S. Senate, One Hundred Fourteenth Congress, First Session, July 22, 2015   [open pdf - 725KB]

This is a compilation of the July 22, 2015 hearing entitled "With Prejudice: Supreme Court Activism and Possible Solutions," held before the Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts of the Senate Committee on the Judiciary. From the opening statement of Patrick Leahy: "Former Supreme Court Chief Justice William Rehnquist once said, 'The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction.' Our Founders long understood that an independent judiciary was critical to our constitutional system of checks and balances and wisely designed our system to insulate our Federal judiciary from politics. Ignoring our history and Constitution, Senate Republicans have recently presented a series of proposals that would undermine the independence of our Third Branch and politicize the Federal courts. These measures from the junior Senator from Texas include: (1) a constitutional amendment so that states may discriminate against lawfully married couples; (2) a bill that would strip the Federal courts of jurisdiction from adjudicating the constitutionality of marriage laws; and (3) a constitutional amendment to subject Supreme Court justices to judicial retention elections, injecting politics into this co-equal and independent branch. These proposals are contrary to what the Framers intended when they created the independent Third Branch in the Constitution. […] Elected officials and the general public have always criticized and debated the decisions of our Third Branch. It is a natural and healthy aspect of our democracy -- and it is what our Framers' intended when they drafted Article III of our Constitution. The solution to disagreement, however, is not to destroy the Third Branch by undermining its role and its independence. And that is what these proposals would do." Statements, letters, and materials submitted for the record include those of the following: John Eastman, Neil Siegel, and Ed Whelan.

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