Mr. President, on July 4, we celebrated the founding of our Nation, as we do every year. But when I woke up on this July 4, I had a strange thought, a thought I never had before, the question of, What kind of country are we celebrating? I…
Mr. President, on July 4, we celebrated the founding of our Nation, as we do every year. But when I woke up on this July 4, I had a strange thought, a thought I never had before, the question of, What kind of country are we celebrating?
I have always had immense pride in the founding vision of our Nation, in that vision of equality, of opportunity for all, of freedom of religion, of equal justice under the law, of equal representation, and, most importantly, of government of, by, and for the people.
Our journey as a nation over nearly 250 years has been a difficult journey of moving toward full implementation of this vision. That is an inspiring journey--a journey I have been proud to witness, a journey I have been proud to be a part of.
But just days before this year's July 4 celebration, we saw the conclusion of the Supreme Court's latest judicial term--a term over which the Court displayed a far different vision for America: one with devastating repercussions that will reverberate in the lives of countless Americans for decades to come.
For years now--actually, for decades, we have watched a steady, relentless effort by rightwing extremists to rig the courts so they can transform America and American society as we have known it. Their big goal is corporations over people and their second goal is to implement conservative cultural policy over individual freedom and liberty.
Now, with this Court's recent decisions, we are left with an inescapable conclusion: The extremists have succeeded. The Court is now operating as an unelected super-legislature with a MAGA political agenda. Their decisions this term read like planks out of the Republican Party platform.
Here is what the MAGA Court's vision is for our Nation. It is a vision that obliterates the right to privacy, giving an overbearing Federal Government the power to be in the medical exam room making reproductive health decisions for American women, when the only people who should be in the exam room, under an ``of and by the people'' Republic is the woman, her doctor, and whomever else she chooses to invite--her partner, her friend, or her religious adviser.
This Court's vision is a vision that embraces never-ending gun violence, stripping Congress and the States of
the ability to make commonsense gun safety laws.
It is a vision of a nation where public schools can impose religion on their students. So much for freedom of religion and separation of church and State.
It is a vision of a nation where wrongfully incarcerated Americans don't have the right to prove their innocence and can't find justice if their Miranda rights were violated. So much for the principle of equal justice under law, the very principle carved into stone above the doors of the Supreme Court. In fact, if you go out this door and out the front steps, you can see those words while standing here on the steps of the Senate.
This Court's vision is of a nation where the Court strips the Federal Government of its legally enacted power to regulate fossil carbon and fossil methane pollution that is destroying our Nation and our planet.
It is a vision where the powerful corrupt the integrity of our elections with gerrymandering and dark money and measures to prevent targeted groups of Americans from voting.
This vision is a vision for a government by and for the powerful, not by and for the people.
This vision in which the Supreme Court becomes a superlegislature for a MAGA agenda infuriates me. It infuriates me because I believe in government by and for the people, not by and for the powerful. It infuriates me because I know the pain that these decisions will inflict on millions of Americans--the pain of a woman forced by a State government to carry a fetus to term that was conceived through rape or incest or the pain of any woman, for that matter, who simply is unprepared to be pregnant or become a parent; the pain of every single person who will have to mourn the death of a loved one lost to an ever- growing epidemic of gun violence and mass shootings like we saw in Uvalde and in Highland Park and in countless other communities with more than one mass shooting per day; the pain of the citizens blocked from the ballot box, effectively denied their most fundamental right as Americans because of voter suppression schemes enacted in many States over this past year; the pain of students in our public schools pressured to participate in religious acts in conflict with their own beliefs; the pain of rural Americans, ranchers, and farmers whose farms and ranches will be lost to fire and drought because the Court says the Federal Government cannot regulate fossil carbon and fossil methane causing climate chaos.
And I am infuriated because I know more Supreme Court decisions like these are coming from the six MAGA Justices on the Court. They want to cement their vision of America through superlegislative powers rather than calling the balls and strikes defending the Constitution, which is their job.
They have announced that next term they are going to hear a case on the fringe doctrine known as the independent State legislature doctrine. It has been considered an extremist idea, which says only State legislatures have the power to make decisions about Federal elections and how to appoint electors. State courts would have no power to ensure checks and balances or decide which decisions about elections violate a State constitution or ignore the will of the voters, nor could State Governors veto such legislative decisions. And that is just the start.
Justice Thomas himself said in his concurring opinion that, based on the reasoning in Dobbs, he wants the Court to consider a whole host of other rights that have been secured and protected by previous Courts, including the possibility of striking down the right to intimacy and marriage for same-sex couples and the right to contraception.
Make no mistake, this is not some sudden occurrence. It is exactly what the Federalist Society has been working toward for decades.
Before joining the Court in 1972, Lewis Powell wrote about the need to rebuild the power of industrial elites and fight back ``from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians'' against progressive changes in society. In outlining a plan for rebuilding the power of Big Business, he declared that, with an activist-minded Supreme Court, the judiciary may be the most important instrument for achieving that goal.
That is exactly why, as majority leader in 2017, Senator McConnell stole a Supreme Court seat from one President so another President could fill it. He stole it in 2016, and he filled it in 2017 with MAGA Justice Neil Gorsuch. It is why, in 2018, Leader McConnell completely ignored credible accounts of sexual assault and rushed through a confirmation without giving Senators access to the nominee's full records and bypassing committee quorum rules to fill another seat with MAGA Justice Brett Kavanaugh. And it is why, when a seat opened up in another election year, 2020, just weeks before the voters would vote, Leader McConnell completely reversed his argument that he had used to justify the theft of a Supreme Court seat in 2016, and he rammed through the nomination of MAGA Justice Amy Coney Barrett.
The Republican Party has won one popular vote for President in the last 30 years but has appointed two-thirds of the sitting Justices, who now see it as their job to become a super-legislature for a cultural agenda and corporate power.
In one of his columns, Eugene Robinson of the Washington Post described the resulting unelected, unaccountable majority of Supreme Court Justices as a ``junta''--a word used to describe authoritarian leaders who rule through edicts rather than through legislative determination or deliberation on constitutional principles. It is hard to argue with Eugene Robinson's characterization.
In spite of what the vast majority of Americans want--the protection of a woman's right to full reproductive healthcare and more gun safety, not less, and free and fair elections--the Court's MAGA majority has chosen to rule by Supreme Court edict to inflict their narrow preferences for society on hundreds of millions of Americans.
And they are not just using the regular process for considering cases. Over the past 5 years, we have seen a monumental shift in the Court's use of emergency orders--the so-called shadow docket--to enact sweeping decisions on the American people. These cases don't get the full process we are familiar with--formal briefings, formal hearings, lengthy deliberations, and opinion writings--because it is argued that the applicant would suffer ``irreparable harm'' if their request were not immediately granted.
The shadow docket decisions, by the way, are usually unsigned and unexplained. In the past, they have essentially involved death penalty cases--cases of literal life and death--of pretty much extreme importance to the applicant because, if someone is executed before their case is heard, they do suffer ``irreparable harm''--the standard.
Then, about 5 years ago, we started to see a big shift in the emergency cases being taken up and in the substances of them as well.
We have seen the shadow docket used to stop the Federal Government from implementing a vaccine and testing mandate on businesses to protect public health in the middle of an unprecedented global health crisis that has killed more than a million Americans.
We have seen it used to uphold a Texas law banning abortion after 6 weeks.
We have seen it used when a lower court blocked Alabama's congressional map because it violated the Voting Rights Act by diluting the political power of Black voters.
The Court said: You have got to draw a new map that is fair.
The Supreme Court stepped in with their shadow docket and said: No. Alabama can use this faulty map that dilutes the power of Black Americans.
In this situation, the Court didn't stop the infliction of harm; they inflicted the harm on Black Americans, who want fair maps, who deserve fair maps for voting in our democracy. That gerrymandered map is now in place to disenfranchise Black voters in this November's election because of the Supreme Court's use of the shadow docket.
It is hard to see how any of these cases met the test for the shadow docket.
The state of abuse of the shadow docket has gotten so bad and so blatant that even Justice Roberts, the Chief Justice of the Court, joined a dissent in a case reinstating a Trump administration Clean Water Act regulation limiting Federal protections for streams and wetlands. This dissent
stated that the majority's decision ``renders the court's emergency docket,'' meaning the shadow docket, ``not for emergencies at all . . . . The docket becomes only another place for merits determinations-- except made without full briefing and argument.'' When the Supreme Court's Chief Justice says the shadow docket is being abused, you know it is true.
This MAGA Court is so determined to impose their legislative priorities and values on our country that they have abandoned one of the core principles of American jurisprudence, going back to even before there was a United States of America, and that is that the Court only rules when there is an actual dispute or controversy in question.
In their eagerness to cripple the Federal Government's ability to fight fossil carbon pollution, the MAGA Justices weighed in on a regulation that had never been enforced--a regulation that had been withdrawn by President Trump and a regulation which President Biden had indicated was never going to be reinstated. Even the utilities that would have been regulated didn't want the Supreme Court to decide this case. This out-of-control MAGA Supreme Court super-legislature wanted to legislate--and legislate they did--violating a core principle that the Court does not address moot cases. Moot cases are cases where there is nothing still in dispute, and this certainly was the case that this case was as dead or as moot as it could be because nobody could be impacted by a rule that doesn't exist.
Why did the Court take up this case?
Well, we may not be able to specify the exact reasoning by each Justice, but the effect is clear. By taking up this case, the Court furthered the MAGA policy agenda. Their ruling handcuffed Federal authorities' ability to pursue future limitations on pollutions from fossil fuels like carbon dioxide and fossil methane. This is to the enormous benefit of the fossil fuel billionaires who funded the massive dark money campaigns that supported these Justices' confirmations. That situation of their breaking precedent to benefit the fossil billionaires, who had just funded their confirmation campaigns, reeks of corruption.
When generations ahead of us look back at this moment, I have no doubt--especially when they look at this year, 2022, and what the Court did in a single year--they will look back with a sense of profound disbelief--disbelief--like that disbelief that we experience when we look back on cases like Dred Scott, which dehumanized Black Americans and legitimized slavery, or Plessy v. Ferguson, which locked in 60 years of vicious discrimination and racial terrorism under a separate but equal philosophy.
The disbelief that future generations will have will be directed at Dobbs--a decision this year in which the Court obliterated privacy and put an overbearing government in charge of women's reproductive health.
They will have the disbelief that, in Kennedy v. Bremerton--decided this year--the Court destroyed freedom of religion in our public schools; the disbelief that, in West Virginia v. EPA--a decision this year--the Court violated centuries of precedent to rule on a regulation that is no longer on books, with the effect--perhaps the goal--of limiting the future regulation of greenhouse gas pollution; the disbelief in New York State Rifle & Pistol Association v. Bruen-- decided this year--that the Court ruled that a State legislature can't require folks to have a good reason to carry a concealed weapon in public spaces.
Let me be clear. This activist, extremist MAGA Court faces a legitimacy crisis, and a legitimacy crisis for the Court is a crisis for our democratic Republic. Part of that illegitimacy is Justices of the Supreme Court selectively using a doctrine of so-called originalism to justify their politically inspired decisions. The doctrine of originalism is based on a reasonable argument, one on which you and I would say makes sense: a goal of understanding what the Founders meant when they wrote what they wrote in our Constitution more than two centuries ago. But if that effort is applied selectively, it simply becomes a measure to justify, after the fact, where the Justices want it to come out. They use it when it works, and they abandon it when it doesn't.
For example, the Founders wrote the Second Amendment to ensure that members of well-regulated militias had access to their rifles, but the so-called originalists on the Court cast originalism aside, declaring that the Founders wrote that clause to ensure that nonmilitia members had the right to bring assault rifles--that didn't exist in 1787--onto subways, which didn't exist in 1787. That is bogus originalism in its purist form.
Consider this: Corporations, as we know them today, did not exist in 1787. Yet the so-called originalists on the Court insist that the Founders' vision of the First Amendment, to protect freedom of speech, gives corporations speech rights even though the word ``corporation'' doesn't appear in the Constitution--a point that they use when they want to take an originalist argument: that the Founders had to have it be something written in the Constitution and be something they discussed and something they considered and something they envisioned. None of those are true. Not a one of them is true in this case.
The MAGA Court also claims that a corporation is a person, which no Founder would ever have argued. They didn't even know what a ``corporation'' was because they didn't exist in this form that we have now.
The MAGA Court goes on to claim that the members comprising the corporate personhood--those are the stockholders of a corporation--have absolutely no right to know how that corporation that they are part of spends their money. This is absurdity stacked on the fallacy that a corporation is a person.
I have yet to see and yet to hear any plausible explanation as to how the MAGA Justices can be confident that the Founders intended for billionaire CEOs to hijack the accumulated wealth of their stockholders without their stockholders' knowledge or permission or opportunity to know what is being said and to use that money as speech and to spend it on secretly funded campaigns, including campaigns to confirm Supreme Court Justices.
The problem we face, colleagues, isn't just a MAGA-majority Court enacting terrible policy rather than defending the balls and strikes against the Constitution. The problem is greater if the highest Court in the land loses its legitimacy, the law itself loses its legitimacy. If the American people see the Supreme Court Justices making clear that the law has no meaning other than their political preferences, then the law is not the foundation for our society that it is supposed to be.
We have seen with deadly results on January 6, 2021, the consequences to our policies, to our politics, and to our society when the rule of law is replaced by violence and power as the organizing principle for society.
The Court is essential in a society based on the rule of law, and it is essential to have a Court that honors the law rather than trying to write the law.
This MAGA majority and its desire, and operation as a super- legislature--unelected, lifetime appointments--is a dire threat to our Republic. Here in Congress, we must not only shine a light--a spotlight--on the threat; we must stop the runaway MAGA Court from corrupting the rule of law and try to restore the legitimate role of the Court as a panel defending our Constitution.
Some will say there is no way to restore the Court and that any strategy for restoring the Court will simply compound the problems we are now facing, and I agree that there is no simple way to restore the legitimacy of the Court.
Back in 2017, when then-Majority Leader McConnell was striving to complete the theft of the Supreme Court seat taken from the administration of Barack Obama, I took to this floor for 15\1/2\ hours with one simple message: Don't do it. Don't do it because, if you do, you will damage the legitimacy of the Court and there will be no simple path, no easy remedy to restore the Court's legitimacy.
But Leader McConnell, he doused the Supreme Court with gasoline on that day, and he set it on fire. He did the damage. I stood here for 15\1/2\ hours and said don't do it.
You know, we take an oath of office to a Constitution. That involves defending the Court, not delegitimizing the Court, not stealing Supreme Court
seats. It was the first time in the history of the United States of America that this Senate failed to debate and vote on a nominee. But here we are; the damage is done. What do we do now?
When an arsonist sets fire to your house, you don't let it burn because you are worried about water damage. You have to strive to put out that fire, regardless of how difficult the task. So I say to you today, we cannot accept the defeatist attitude that fails to confront the forces destroying our Republic.
There are two things we must do. Mission one, we have to reform the ability of this broken Senate to serve as a legislature because, if it serves effectively as a legislature, it can serve as a counterweight to decisions of a corrupted Court.
The second thing we have to do is put all options on the table and debate them for directly reforming the Court, recognizing that we are left with difficult choices on how to do that. But we have to step up. It is necessary to save our Republic.
So let's take each of these missions in turn. The first is to restore the Senate.
Our goal: Restore the Senate as a legislative body to serve as a counterweight to the corruption of a MAGA-majority Court.
There are three massive problems currently afflicting the Senate's ability to serve as a functioning legislative body. First, we spend virtually all of our time on nominations, so much time that it keeps us from doing much legislating, even though we have a massively complex society and a lot of possibilities for making it work better.
When George Washington was assembling his first administration, he had to appoint and the Senate had to confirm four Cabinet positions: Secretary of War, Secretary of the Treasury, Secretary of State, and Attorney General--four positions. Today, the Senate is responsible for confirming over 1,200 Presidential appointments to executive branch positions and commissions.
Now, in the past, both parties worked to exercise the Senate's advice and consent responsibilities in a manner that minimized the amount of Senate time required. Most were done by unanimous consent late at night, when practically anyone was here because most nominations are not ones to which anyone has an objection.
In the entire decade of the 1960s, there was one vote required to close debate on a nominee--one, in an entire 10 years. But, last decade, that number went to 545. Now, it is like every nomination. Virtually every nomination we have to file to close debate and vote to close debate before we can vote on the nominee. And do you know what? The way it works, you can also require 30 hours of debate after the vote to close debate succeeds.
So the rules, which were designed for exceptional situations where there is a significant objection, are now used as partisan obstruction.
Democrats are in the minority. They want to tie up the Republicans. So they have little time to legislate.
Republicans are in the minority. They want to tie up the Democrats. So they have little time to legislate.
They want each other to fail, partly because they disagree and partly because they know if the other side succeeds in making something work, the voters might reward them at the ballot box.
We have to massively streamline this nomination process. We have to-- 100 Senators--work together, not do what is best for us when we are in the majority and oppose it when we are in the minority, or vice versa. We all have a responsibility to completely streamline that process so we can return to being a legislature.
The second big problem for the Senate is that the rules provide a complicated, time-consuming process for debating and voting on whether to debate a bill. It involves a motion to proceed or requirement to close debate on the motion to proceed and whose nomination is up to 30 hours of additional of debate--all on the question of whether to debate. You have 100 capable people sent here by their constituents in their various States to solve problems for America, not to spend a week debating whether to debate a single bill. That could be a week spent debating the amendments that could make the bill better, a week spent considering individual pieces of the bills so the public knows where we stand and there is public accountability. But, instead, we have partisan paralysis. A completely dysfunctional Senate, that is what we have. We have to change the rules to stop this completely meritless waste of the time and efforts of 100 Senators.
It is an easy solution: 1 hour spent debating whether to debate a bill, and then a simple majority vote, either we go to the bill or we don't; easy solution. One hour makes much more sense than 1 week.
The third big problem this Senate Chamber faces is a secret silent filibuster. Under the Senate rule--and by the way, the term ``filibuster'' is really inappropriate because this involves no speaking of any kind. Under the Senate rule, 41 Senators can, operating as a block, veto the opportunity for the Senate to debate a bill, veto the opportunity for the Senate to consider an amendment, and veto the ability, after amendments have been considered, to have a final vote on the bill. It is the triple veto: three opportunities for the minority to blockade the majority from being able to consider legislation to address the issues facing America. And both parties have attempted to use it when they are in the minority. We have to restore the ability to actually debate.
It is exactly what the Founders feared. When I lay out that 41 can block and veto these 3 steps of the process, it means to reverse it-- that 60 out of 100, a supermajority, has to agree to go forward through each of those three steps.
The Founders warned us: Never allow the minority to make the decisions by requiring a supermajority. Don't to it.
That is why James Madison said that, with a supermajority, when ``the general good might require new laws . . . the principle of free government would be reversed. It would no longer be the majority that would rule: the power would be transferred to the minority.''
It is why Alexander Hamilton warned that a supermajority requirement would result in ``tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.''
He also warned that ``the history of every political establishment in which this principle has prevailed''--the principle of supermajority-- ``is a history impotence, perplexity, and disorder.''
Now, you may wonder if the Founders had simply read about someone somewhere requiring a supermajority for legislature and said it didn't work very well and thought, We had better warn Americans not to do this. No, they were writing from their direct experience because, as they were drafting and debating our 1787 Constitution, they were actually in the middle of living through the impotence and incompetence of the Confederation Congress.
Under the Articles of Confederation, which preceded our 1787 Constitution, the Congress had to have a supermajority on every provision; meaning, the position of the minority could prevail over the position of the majority. The result was paralysis on the most fundamental issues they faced. They failed to raise the funds to pay the pensions of the veterans who spilled their blood in the Revolutionary War that created this Nation. They failed to raise the funds to put down Shays' Rebellion.
Well, today, we have not one stage of veto, like they faced in the Confederation Congress, we have the triple veto power under the current secret, silent filibuster, and we are seeing the same impotence, the same paralysis, the same partisanship that it drives.
The triple veto power of the minority is destroying the Senate to address challenges facing America, and there are a lot of them.
We have got the climate crisis that is literally setting our country on fire. Right now, at this very moment, around 40 million Americans across the Plains and the Mississippi Valley are dealing with alerts for dangerous and intense heat, while firefighters are confronting 89 large fires across 12 States. And as of last week, four times as much acreage has burned this year as last year at this moment.
And it is not just America, of course. Across the Atlantic, Europe is going through a recordbreaking heat wave, reaching temperatures some of those
places have never seen and causing wildfires to burn in France and Spain and Italy and Greece.
Congress should be immersed in considering bills to address the climate crisis that is damaging communities across our country, and not just through fires but through rising sea levels and rising erosion, through pine beetle infestations and mosquito infestations, through stronger hurricanes and stronger tornadoes, and, certainly, through the power of multiyear droughts. But we are not because the triple veto of the silent, secret filibuster afflicting this body is blocking us from doing so.
We have a housing crisis. Out-of-control rents and prices make it impossible for millions of Americans to afford a decent home to rent or buy. And colleagues have one idea after another about how we should address it, but because we are paralyzed and our process is taken up, our time is taken up with nominations and debating whether to debate and we have the triple veto of the secret, silent filibuster, they can't move forward. And we aren't debating, discussing, and hopefully passing measures that can make a difference.
And Americans are outraged by the prices they pay on drugs, which are so much higher than any other developed country. Eighty percent of Americans say: Do something about it. And I think the other 20 percent don't realize how much we are getting ripped off. And Americans know we should get the best price because we invest the most in the research and development that creates these drugs, not the worst price, and they are absolutely right. And we would have passed legislation by now to get the best prices in the developed world, but we are blocked by the triple veto of the secret, silent filibuster.
And now States are passing laws to block targeted groups of Americans from voting. We can fix that by passing S. 1, the For the People Act, or its reincarnation, the Freedom to Vote Act, but we can't because it was blocked by the triple veto of the secret, silent filibuster.
Let me be absolutely clear. The single most effective way we can counterbalance an out-of-control Court with a MAGA agenda is to have a functioning Senate. That is the most immediate remedy available to us to respond to this terrible affliction undermining our Republic.
If the Court says there is no problem with gerrymandered districts, where politicians choose their constituents instead of Americans choosing their leaders, as they did in the 2019 Rucho v. Common Cause decision, well, a reformed, restored Senate could pass legislation to require nonpartisan commissions to draw legislative districts. At least we could have a robust debate over it, maybe pass a few amendments modifying it in different forms--or perhaps find some other solution-- if we had a functioning legislative process.
If the Court says there is no limit to dark money from corporations and billionaires who flood and drown out the voices of ordinary Americans and campaigns, as they did in the 2010 Citizens United decision, a reformed, restored Senate could pass the DISCLOSE Act to shine a light on every dollar and where it is coming from in American campaigns.
If the Court says that anyone who wants to be able to carry a concealed weapon should be able to like they did in their New York State Rifle & Pistol Association v. Bruen decision, a restored, functioning Senate could pass stronger gun safety laws that most Americans support, like ending the background check loophole--when guns are bought and sold by unlicensed parties online or at gun shows--or by outlawing the kinds of large magazines that carry 30 or more bullets that are often used in mass shootings.
And when the Court went to abnormally great lengths to decide in last month's West Virginia v. EPA that the Agency can't regulate fossil carbon or fossil methane emissions, a functioning Senate would be able to step up and create the programs designed to speed up the transition to renewable energy, which would have the added benefit of ending our addiction to oil and dropping the prices at the pump, and it would keep money out of the hands of dictators in Russia, Saudi Arabia, and Iran. But the triple veto of the secret, silent filibuster has blocked us from doing so.
The remedy is not to eliminate the filibuster. The remedy is to reform it. The right reform is to adopt the public, talking filibuster. The talking filibuster would reassert the fundamental principle of legislative conduct: the Senate Code, adopted by the original Senate. Under that code, the Senate listened to every Senator's perspective, and then it took a vote on the issue, be it a bill or be it an amendment. That was the Senate Code.
The original rules provided that every Senator had the right to speak twice to a question. It was rule No. 4 in the original rules. It is in our rules today. But the spirit of that code--listening to each Senator and then voting, with the majority winning, not losing--that part is gone. Now, it is the minority that can exercise a triple veto, a veto absolutely exactly the opposite of what the Founders said to us. They said: Don't do it. And we have done it in triplicate form, paralyzing this place and accentuating the temptation of yielding to partisanship rather than problem-solving.
Jefferson did say that this rule, this code of listening to every Senator and voting, should not be abused. In fact, he said this in his manual for rules in 1801:
No one is to speak impertinently or beside the question,
superfluously or tediously.
It worked for the Founders. They exercised some self-control, so much so that they didn't need the rule that they had to close debate. They just simply listened to everyone with mutual respect and then said: OK. Let's take a vote.
You want to see that in action today? Watch the committee process on a bill with amendments. There is no one filibustering, speaking forever. There is no one requiring a supermajority to close debate in committee. They operate--we operate--in committee, much like the original Senate, and it works pretty well, but we have completely lost that discipline when it comes to debate here on our floor.
So the early Senate had a rule for the previous question motion, to close debate or accelerate the closure of debate. And when they rewrote the rule book--and Aaron Burr was in charge of it--in 1806, they dropped the rule because they never used it, didn't feel they ever needed it.
Well, we need to reclaim that vision, and our rules have gotten so crazy, so out of whack, that we encourage partisanship and paralysis rather than problem-solving. Let's fix that.
So let's have the talking filibuster. The talking filibuster says, Yes, you can speak on the issue. We will listen to everyone. You can speak twice. But then we vote, and the majority wins--not a supermajority required. The minority doesn't win over the majority. The majority wins.
That was the Senate. That was the design of our Constitution that we have the responsibility to restore because we took an oath to the Constitution. So let's restore it. And that talking filibuster encourages bipartisan problem-solving. The minority, be it the Democratic or Republican, that wants to slow things down for leverage, they can. So they have significant leverage, but, on the other hand, they have an incentive to negotiate because they are not sure how long they can maintain continuous debate. And that is the heart of the talking filibuster: maintaining continuous debate. If there is a break in debate, you go to the vote.
Meanwhile, the majority has an incentive to compromise because they know the minority can tie this place up on a single bill for week after week, and they can't afford to have that much time taken over a single bill. So the talking filibuster restores an incentive for compromise and bipartisan problem-solving and, in the end, restores the vision that the majority makes the decision, not the minority. In the end, it gives the minority a voice, it gives the minority massive leverage, but it takes away their veto. That is the right way to legislate in a democracy.
As I noted before, fixing the Senate is probably the best immediate tool we have for repairing the damage from the Supreme Court across the grounds. But we also have to consider every possible remedy to restore the Court itself, to restore a Court that calls the balls and strikes on the Constitution, defending
its core principles, and recognizes it is not there to legislate--not to legislate on the left side, not to legislate on the right side. They are there to defend the Constitution.
Well, reforming the Court won't be easily done. But President Biden did convene a Commission to explore the option, and that Commission has produced a lengthy, lengthy report. This is part of it: The Presidential Commission on the Supreme Court of the United States, December of last year.
I encourage all my colleagues to read this and consider the ideas in it. In this 300-page report, the Commission does review the history of how the Court has been in different phases, and its size has changed all the time because that is not established in the Constitution. It has been as few as 5, and it has been more than 10. There was not nine locked in like it is now.
And, certainly, one of the ideas they review is adjustment to the size of the Court. Many people have said that is something to look at to balance what has happened with the Court, with the stolen Supreme Court seat and a decision by several Justices to be a legislature rather than a court.
Well, that is one idea. Another is implementing term limits or a mandatory retirement age because, when the Constitution was first written, people weren't living the long lives they have today, and they didn't stay in the Court forever.
In 1787, the Founders wrote that Justices would hold their seats during good behavior. Now, I am not sure that every Justice across these grounds has been engaged in good behavior when they are choosing to legislate rather than to rule on the defense of the Constitution, but there is no easy way to remove them from the Court for misbehavior.
But one possibility is for the Court members to rotate out with term limits of some kind. That is one possibility.
In much of our history, Justices only served an average of 15 years on the Court. The average is now 26 and getting longer. And, did you know, America is the only constitutional democracy that gives lifetime presence on the Court, that doesn't have either a term limit or a mandatory retirement age?
This report, this Commission, has other ideas in it: rotating membership on the Court with judges selected from the circuit court. You know, the original Supreme Court, they served as circuit court writers. They went out and made decisions across this country. They didn't just sit in a room in the capital. So there is some precedent for that idea.
And others point out that there is the power to restrict the Court's jurisdiction. There are pros and cons for these various ideas, and our commitment needs to be to examine them. The American public is open to examining them.
Earlier this week, the FOX News poll reported that 66 percent of the folks in their poll support an 18-year term for Justices, and 71 percent support a mandatory retirement age. So the American people are open to trying to fix the challenge with the Court. We have to be open to fixing it, and we need to look at every option and idea very carefully to ensure that the highest Court in our land fulfills the vision for it in our Constitution. And the vision in our Constitution was not that it would be an unelected super-legislature.
Colleagues, this is a perilous moment for our Republic. It is a moment when the will of the people is being overrun by an extreme agenda of a Court legislating from the Bench, imposing their narrow and precedent-destroying will on all Americans. We have to restore the ability of this Senate to operate as a legislature that can be a counterbalance to what the Court does, and we must thoughtfully consider every proposal for reforming the Court directly.
We can and we must act before it is too late. We can't stand by and watch the continuous disintegration of our Republic.
Our oath to the Constitution demands that we protect these institutions and repair them when they go off track. And when we do, the next July 4, we can all join together and celebrate the restoration of our paralyzed and partisan Senate into an actual legislative body. We can celebrate the restoration of Americans' rights that are being continuously stripped away across the grounds by the Supreme Court. We can have a renewed belief and confidence in the integrity of all of our institutions and our democratic form of governance. That would be a moment justifying a massive celebration next July 4.