Ted Cruz Sits in Judgment of the Supreme Court

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

National Journal
Colby Bermel
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Colby Bermel
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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