The New York Democrat has expressed regret for some of what he said, but this incident is worth considering in its totality. On Wednesday, he spoke to abortion-rights supporters at a rally in front of the court as the justices were hearing a challenge to a Louisiana law that would require physicians performing abortions to have the right to admit patients to local hospitals. Reaching a fevered rhetorical pitch, Schumer turned and gestured toward the court building and said: “I want to tell you, Gorsuch; I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
That triggered an unusual and sharp rebuke from Chief Justice John G. Roberts Jr. “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said in a written statement. “All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”
Schumer’s office responded that his comments weren’t threatening violence but, instead, “were a reference to the political price Senate Republicans will pay for putting these justices on the court, and a warning that the justices will unleash a major grass-roots movement on the issue of reproductive rights against the decision.”
Schumer’s words, however, were unmistakably intimidating: “I want to tell you, Gorsuch.” “I want to tell you, Kavanaugh.” “You will pay the price.” “You won’t know what hit you if …” The emphasis is mine, but the meaning is clear: If you don’t do as we say, something bad will happen to you.
Those were threats, pure and simple. Although Schumer’s office was right that Schumer also spoke of a political backlash at the ballot box, that hardly leavens the threatening words Schumer directed toward Justices Neil M. Gorsuch and Brett M. Kavanaugh. They have life tenure. Just as the Constitution’s drafters intended, elections can’t punish them. So what “price” would they “pay”? What exactly will “hit” them?
Schumer’s remarks received, thankfully, condemnation not just from Republicans but also from Democrats — among others, Harvard Law School professor Laurence Tribe, a staunch supporter of abortion rights and friend of the senator, and my friend Neal Katyal, a former acting solicitor general during the Obama administration. Both urged Schumer to apologize and praised the chief justice’s response.
To his credit, Schumer walked back his intemperate remarks. “I shouldn’t have used the words I did,” he said on the Senate floor Thursday. That’s a start, but he made no mention of the troubling statement his spokesman issued Wednesday that attacked Roberts: “For Justice Roberts to follow the right wing’s deliberate misinterpretation of what Senator Schumer said, while remaining silent when President Trump attacked Justices Sotomayor and Ginsburg last week, shows Roberts does not just call balls and strikes.”
This attack on Roberts engaged in misleading whataboutism and false equivalence — and invoked Trump’s bad behavior to justify Schumer’s behavior, which was worse than Trump’s. The president’s recent demands for Justices Ruth Bader Ginsburg and Sonia Sotomayor to recuse themselves in all “Trump matters,” were, as I argued here, dumb, baseless and contemptuous of the rule of law. But they weren’t threatening. Indeed, since Trump could theoretically make a motion to recuse, and thus present the issue to the individual justices, it would have been inappropriate for Roberts to respond. And given how Trump didn’t and won’t back up his words with such a motion, his remarks didn’t deserve a response.
Beyond this, Roberts has spoken out against Trump’s demeaning of the judiciary. In November 2018, after Trump criticized an “Obama judge” who had ruled against Trump’s administration, Roberts responded that there are no “Obama judges or Trump judges, Bush judges or Clinton judges” but, instead, "an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” (Trump, of course, immediately hit back.)
But judges, let alone the chief justice, shouldn’t have to verbally spar with politicians. It undermines the judiciary for judges to have to do that, or even to consider whether they have to.
It’s time to end the cycle. Instead of channeling Trump, and attacking the courts in ways that are as bad as or worse than the president’s, public officials who ought to know better should behave better. They can criticize judicial decisions on the merits, for their reasoning, to their hearts’ content, but they mustn’t use threatening language. They shouldn’t use judges as political battering rams. And they shouldn’t baselessly attack a judge’s integrity.
Because if they do, they attack the rule of law, and, as a nation, we will all reap the whirlwind and pay the price.