Statement of Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee, On the Anniversary of Brown v. Board of Education

Today is the 62nd anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education, which reaffirmed our Nation’s commitment to justice and equality by ending racial segregation in our public schools.  The unanimous Court overruled one of its worst precedents in Plessy v. Ferguson and held that “in the field of public education, the doctrine of ‘separate but equal’ has no place.  Separate educational facilities are inherently unequal.” 

For generations the Brown v. Board decision has been viewed as a turning point in the effort to eradicate the shameful legacy of Jim Crow and racial segregation.  On this anniversary we are reminded of the significance of a strong and independent Supreme Court, as set forth in our Constitution.  Americans respect the Court as our guardian of the Constitution and the rule of law.  Each generation of Americans since the nation’s founding has worked to bend the arc of the moral universe further toward justice, seeking to fulfill the Constitution’s stated purpose of forming “a more perfect Union.”  In Brown v. Board, the Court’s unanimous decision reflected that we are a nation of laws and that Equal Justice Under Law has meaning. 

Unfortunately, while we commemorate this momentous Supreme Court decision today, we find the Supreme Court today weakened by Senate Republicans’ current obstruction.  It is an undisputable fact that the Republicans’ refusal to consider Chief Judge Merrick Garland’s nomination means that the Supreme Court will be without a full nine justices for more than one of its terms.  The Republican argument articulated in February that they should delay all consideration because it is an election year has no precedent and is unprincipled.  It shows contempt for the Court as an institution and as an independent and co-equal branch of government. 

The result of Republicans’ sustained obstruction is that the Court is taking on fewer cases, and even in the cases it does hear, it has repeatedly been unable to definitively resolve the issue before it.  A May 1 article by Robert Barnes in the Washington Post notes that the number of cases that the justices have accepted has fallen, and the experts in that article attribute this to the Court being down one member.  As one expert noted in the article, “there seem to be a number of ‘defensive denials,’ meaning neither side of the ideologically split court wants to take some cases because of uncertainty about how it will turn out, or whether the court will be able to reach a decision.”

Another harmful effect of this Republican obstruction is that the Court has been contorting itself to avoid 4-4 splits by leaving the key questions of cases undecided.  Just yesterday, in two different cases, the Court was unable to make a final decision on the merits.  In both cases the appellate courts are split on the law and the Supreme Court was unable to live up to its name.  One of the cases, Zubik v. Burwell, involved religiously-affiliated employers’ objections to their employees’ health insurance coverage for contraception.  The Court had already taken the unusual step of ordering supplemental briefing in the case, seemingly to avoid a 4-4 split.  Even with the extra briefing, the Court was still unable to make a decision.  Instead, it sent the issue back to the lower courts expressing “no view on the merits of the cases.”  In the second case, Spokeo v. Robbins, the question at issue was Congress’ ability to statutorily create rights that confer standing for plaintiffs to sue when those rights are violated.  The case involves important privacy questions about Americans’ power to take action when incorrect information is posted about them online.  The Court, however, failed to reach the key question at issue.  The effect is that the current split among the Circuit Courts of Appeals remains unresolved.  As yesterday’s New York Times editorial notes, “Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved.”

In addition to these contortions, the Court has deadlocked in at least three instances on significant legal issues before it.  These 4-4 splits have real, practical consequences.  As a recent Economist article noted, “By letting lower-court decisions stand but not requiring other courts to abide by the ruling, the stage is set for odd state-by-state or district-by-district distinctions when it comes to the meaning of laws or the constitution.”  I ask unanimous consent that all three articles be included in the Record.

Republicans’ refusal to do their jobs and consider Chief Judge Garland’s nomination diminishes the role of the Supreme Court.  In nominating Chief Judge Garland to the Supreme Court, President Obama has picked an eminently qualified judge who has more Federal judicial experience than any other Supreme Court nominee in history.  This is an individual who has received praise across the political spectrum.  But instead of delving into his lengthy public service record for themselves, Republicans have decided to outsource their jobs to outside interest groups who have spent millions of dollars to smear Chief Judge Garland.  And worse, they continue to refuse to allow Chief Judge Garland a chance to respond at a public hearing.

As long as they stick to this unprincipled position, Republicans will continue to undermine the Court’s ability to serve its role under our Constitution as the final arbiter of our Nation’s laws.  Republicans should reverse course and treat the Court as the independent and co-equal branch of government that it is.

So today, let us not only celebrate the Court’s historic decision in Brown, but also resolve to return this venerated institution to full strength.  It begins with giving Chief Judge Garland a fair public hearing and a vote.

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