That prompted a highly unusual rebuke from Chief Justice John G. Roberts Jr., who called Schumer’s comments “dangerous.”
“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.
Schumer’s office then shot back by suggesting that Roberts wasn’t being fair in his public comments and had sided with Republicans.
“For Justice Roberts to follow the right wing’s deliberate misinterpretation of what Sen. Schumer said, while remaining silent when President Trump attacked Justices [Sonia] Sotomayor & [Ruth Bader] Ginsburg last week, shows Justice Roberts does not just call balls and strikes,” Schumer spokesman Justin Goodman said, referring to Roberts’s statement in his confirmation hearing that he felt a judge’s role was to call balls and strikes.
Goodman previously issued a statement suggesting that Schumer’s comments had been blown out of proportion and that he meant the justices would be met with a political movement if they vote the wrong way. “It’s a reference to the political price Republicans will pay for putting them 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,” Goodman said.
Trump and Republicans castigated Schumer for the remarks, as well. Senate Majority Leader Mitch McConnell (R-Ky.) chided Schumer Thursday on the Senate floor.
There can be few things worse in a civilized, law abiding nation, than a United States Senator openly, and for all to see and hear, threatening the Supreme Court or its Justices. This is what Chuck Schumer just did. He must pay a severe price for this!— Donald J. Trump (@realDonaldTrump) March 5, 2020
Schumer later Thursday morning sought to temper his comments.
“I’m from Brooklyn; we speak in strong language,” he said. “I shouldn’t have used the words I did, but in no way was I making a threat. I never — never — would do such a thing.”
That explanation from Team Schumer is eminently plausible, but even it speaks to the political and judicial moment we’re in. And you could even argue it’s a “threat” of one sort or another.
Schumer was standing in front of the court and attacking the justices even before they ruled on the case. Then, according to his office’s explanation, he warned them about political pressure that would be brought to bear if they rule the wrong way. He was effectively treating them like advocates rather than interpreters of the law.
Now, nobody is pretending we don’t know exactly where Republican-appointed justices have stood on abortion rights cases in the past. But generally speaking, no matter how predictable Supreme Court vote splits have been, norms suggest they are to be treated as fundamental disagreements among justices about the Constitution — not as political acts by justices going to bat for one side or another or requiring political pressure campaigns. The balance of power relies upon the perception that the judiciary isn’t just an extension of the two political parties in Washington that have the occasions to appoint the judges.
At the same time, that perception has clearly worn thin in recent years.
Then-President Barack Obama spent an inordinate amount of time criticizing the Supreme Court for its decisions during his tenure, as The Washington Post’s Greg Jaffe reported a few years ago. In his 2010 State of the Union address, Obama took the opportunity to criticize the justices’ ruling on Citizens United, prompting Justice Samuel A. Alito Jr. to mouth the words “not true.” When the justices took up a case involving Obamacare, Obama remarked, “This should be an easy case. Frankly, it probably shouldn’t even have been taken up.”
If Obama’s comments on the Supreme Court violated norms, though, Trump’s have obliterated them.
Trump regularly cites his record number of judicial picks and his Supreme Court nominees as achievements — with the implicit understanding being that they will make decisions that Republicans favor. McConnell has also increasingly employed this approach.
Trump has also frequently attacked judges who make rulings he disagrees with, even calling them “Obama judges.” Gorsuch rebuked Trump during his nomination over Trump’s attacks on judges. Roberts too has seen fit to rebuke Trump for this — which is worth emphasizing, given that Schumer’s office criticized him for not doing it last week.
In that instance, Trump urged two justices to recuse themselves from cases involving him. One of them, Sotomayor, had issued a dissent that Trump and others argued (speciously) had accused the court of being biased in favor of Trump. But on the other, involving Ginsburg, Trump was referring to a very real political problem. Ginsburg in 2016 offered some rather unvarnished comments about then-candidate Trump and later apologized.
It’s also worth noting what Kavanaugh has said. When he faced allegations of decades-old sexual assaults during his confirmation, he offered a thoroughly political broadside against the Democrats who opposed him. He said they had engaged in “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election.” He also told them, “You sowed the wind for decades to come” and “I fear that the whole country will reap the whirlwind” — a comment that Schumer’s remarks Wednesday appeared to recall.
Schumer’s remarks are also somewhat similar to an August amicus brief from Democratic senators, led by Sen. Sheldon Whitehouse (D-R.I.). In the brief, Whitehouse and the senators seemed to threaten some kind of public reckoning if the court didn’t drop a gun case.
“The Supreme Court is not well. And the people know it,” Whitehouse wrote. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ” (That quote referred to a poll suggesting Americans liked the idea of restructuring the court.)
The common thread running through all of it is justices being treated as political actors — and in a couple cases acting that way. The subtext is that they can be installed to realize certain outcomes and pressured to decide cases in ways that align with one party or another.
Even if you accept that Schumer wasn’t talking about a more nefarious threat, he was still talking about some kind of retribution or response. He was also deriding sitting justices as if they were his defined political opponents. His allies may sympathize with that, and perhaps we’re past the moment where Supreme Court justices will be viewed as anything other than political pawns. But that’s an extraordinary state of affairs.
And in issuing their dueling statements Wednesday, Schumer and Roberts showed that it might get worse before it gets better — if it gets better.
This post has been updated.