Here is what Schumer 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 drew a rare rebuke from Chief Justice John G. Roberts Jr., who issued a statement declaring that “threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”
At first, Schumer refused to apologize but rather said through a spokesman that he was making “a reference to the political price Republicans will pay for putting them on the court.” No, he wasn’t. He didn’t say Republicans will “pay the price” or that Republicans “won’t know what hit you.” He directed those threats squarely at the two justices. On Thursday, Schumer said, “I shouldn’t have used the words I did, but in no way was I making a threat.” Of course he was.
So, what was he threatening — what “political price” did Schumer have in mind for the Supreme Court justices? He was almost certainly warning Gorsuch and Kavanaugh that if they did not vote as he saw fit, Senate Democrats, when they are in the majority, would follow through on their threats to “restructure” the court by packing it with liberal justices and eliminating its conservative majority.
It wouldn’t be the first time Senate Democrats have made such threats. Last August, Schumer’s second in command, Sen. Richard J. Durbin (D-Ill.), threatened to restructure the court if the justices took up a gun case. In a legal brief, Durbin, along with Democratic Sens. Sheldon Whitehouse (R.I.), Mazie Hirono (Hawaii), Richard Blumenthal (Conn.) and Kirsten Gillibrand (N.Y.), warned in an amicus brief: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’” As all 53 Senate Republicans wrote in a letter to the court, “the implication is as plain as day: Dismiss this case, or we’ll pack the Court.”
In other words, this is the second time in seven months that Senate Democratic leaders have tried to intimidate the court to rule their way on a case, issuing threats of political reprisal. These repeated threats should be taken seriously — because if Democrats win the White House and the Senate in November, they will have the power to follow through.
The election could be one of the most consequential in modern history when it comes to shaping the Supreme Court’s future. Those on the left are apoplectic because they know that if President Trump is reelected and Republicans keep control of the Senate, there is a strong possibility that they will have the chance to expand the court’s conservative majority. The left also knows that if Democrats win, their best hope is to replace liberal Justices Ruth Bader Ginsburg and Stephen G. Breyer — keeping those seats in the court’s liberal bloc.
From the left’s perspective, that isn’t good enough, because it wouldn’t change the court’s ideological makeup. Democrats know that they won’t be able to advance the battle for an activist liberal court unless they expand the court’s size.
Former vice president Joe Biden has said he opposes expanding the court. He also opposed taxpayer funding of abortion until last June, when he realized he could not win the Democratic nomination without changing his position. The judicial left will almost certainly demand that he similarly reverse his position on court-packing. As for Sen. Bernie Sanders (I-Vt.), he has declared his intention, if elected, to push for rotating justices off the Supreme Court and replacing them with lower-court judges. “A federal judge has a lifetime appointment,” Sanders told MSNBC last month, but the Constitution “doesn’t say that lifetime appointment has got to be on the Supreme Court — it’s got to be on a federal court.”
This much is certain. If Democrats win in November, their base will not be satisfied with simply replacing aging liberal justices with younger ones. They have watched with horror as Trump has transformed the federal judiciary. They will not accept the status quo and what they consider an illegitimate conservative majority on the Supreme Court. In other words, regardless of who the Democrats nominate, the future of the Supreme Court is on the ballot in November.