Ted Cruz Sits in Judgment of the Supreme Court

The Texas Republican derides Justice Anthony Kennedy’s “pop psychology.”

National Journal
July 22, 2015, 4:58 p.m.

Sen. Ted Cruz brought his beef with the Supreme Court to Congress.

In something that sounded more like a stump speech than an opening statement, the Texas Republican called to order a Wednesday hearing of his Senate Judiciary subcommittee by lamenting what he called the court’s judicial activism.

“Much to my great disappointment this past term, the Court crossed a line and continued its long descent into lawlessness to a level that I believe demands action,” Cruz said. “The Court today is not a body of jurists; rather, it has declared itself as a super legislature.”

Cruz argued the recent Supreme Court decisions upholding Obamacare and legalizing same-sex marriage — along with past ones such as Roe v. Wade — do not follow the letter of the Constitution. He also took shots at the liberal justices, referring to them as “philosopher-kings” and “unelected elites.”

Justice Anthony Kennedy was a particular target of Cruz, with the senator deriding the justice’s “pop psychology.” Kennedy, who has been the deciding vote in many cases, sided with the majority in the recent cases of Obergefell v. Hodges, which made gay marriage legal nationwide, and King v. Burwell, where the Court declined to block a substantial part of the Affordable Care Act.

The hearing comes when Cruz is seeking to establish recall elections for the Court’s justices, and others support the notion of term limits.

Cruz found allies in two of the three witnesses: Chapman law professor John Eastman and Ethics & Public Policy Center president Ed Whelan. So did GOP Sen. Jeff Sessions, who declared that the majority in the Obergefell and Burwell cases “committed an enormous constitutional wrong. “¦ They deserve the harshest criticism.”

Obergefell goes beyond what I consider to be the realm of reality,” Sessions later said.

In turn, the panel’s ranking member, Democratic Sen. Christopher Coons, went after the conservative justices. He criticized the scathing language in Justice Antonin Scalia’s dissents, along with saying proposed “religious freedom” legislation at the federal and state levels “would amount to a statutorily-protected right to discrimination.”

Duke law professor Neil Siegel sided with the hearing’s Democrats. When discussing Brown v. Board of Education, he said the Warren Court’s decision was “courageous. It made a bet with constitutional destiny.”

Cruz and Sessions, seeing that they could be viewed as too originalist to support the landmark desegregation ruling, acted quickly. Cruz said the decision was “unequivocally correct” because, in his view, it accords with the Constitution’s text. He was also quick to point out that 99 lawmakers who signed the Southern Manifesto — the 1956 congressional document declaring opposition to racial integration in public places — were Democrats.

The hearing went even further back than Brown, with Eastman characterizing the Supreme Court’s judicial review power — granted in the 1803 Marbury v. Madison case — as “judicial supremacy.” The Court today, he said, “is now the most dangerous branch.”

Other cases discussed include 2010’s Citizens United v. FEC and 2013’s Shelby County v. Holder, cases seen as having pro-conservative rulings. Cruz argued that these were not activist cases because they followed the First and 15th Amendments, respectively.

Siegel believes what came of the hearing was to be expected.

“In this setting, [constitutional law] tends to fall along partisan lines,” he told National Journal after. “But what I’m hearing from the chairman and Sen. Sessions is that they know what the law is. The law is clear; apply the law. And it’s really their view of the law, and I vigorously disagree with their view of the law. It’s a disagreement.”

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