In an extraordinary attack on the independence of the judiciary, Senate Minority Leader Sen. Chuck Schumer threatened Associate Justices Neil Gorsuch and Brett Kavanaugh with retaliation if they voted against abortion rights this term. As I discussed in my column yesterday, the Court heard oral arguments today in June Medical Services v. Russo. Schumer joined protests on the steps of the Court to warn the justices that they “will pay the price” if they vote against abortion rights. Chief Justice John Roberts issued a rare public rebuke (as he did earlier with President Trump) to defend the integrity of the judiciary. He was right to do so. Schumer sounded more like a stalker than a statesmen in his threats of future retaliation.
At the rally, Schumer declared “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price!” Schumer warned. “You won’t know what hit you if you go forward with these awful decisions.”
It was an enormously popular statement at the rally and with many liberals. However, it was also a direct assault on the principles of our judicial system. There are good faith arguments on both sides of this case, but Schumer was trying to coerce or intimidate justices to yield to his demands for the outcome. It was a shameful moment for any member of Congress but particularly for the Democratic leader in the Senate.
It was also not an isolated incident. In an unprecedented filing in a prior gun rights case, Democratic Senators Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard Durbin, and Kirsten Gillibrand, warned conservative justices that they should change their voting patterns or face congressional intervention. They wrote that the Supreme Court “can heal itself before the public demands” it be “restructured in order to reduce the influence of politics.” The brief written by Whitehouse was a shocking and raw threat of retaliation.
On this occasion, Roberts responded in a public statement:
“This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that ‘You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions.’ “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. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”
I have been critical of Roberts for his failure to call out colleagues on the Court. However, on this occasion he is absolutely correct in denouncing Schumer for his intemperate and irresponsible rhetoric.
The Democrats have made Trump’s attack on the judiciary into a major political issue going into the 2020 election. I have agreed with that criticism of President Trump. However, they are comparatively quiet in the face of these threats from Schumer. Moreover, Democrats are now openly calling for litmus tests for Supreme Court nominees and demonizing Republican appointees who rule against their own positions.
The fear is not that the justices will yield to such threats. The Framers anticipated politicians like Schumer who would try to intimidate or harass members of the Court. Life tenure is the protection crafted to insulate members of the judiciary. No, the danger is how Schumer’s words further degrade the view of the rule of law and the court system as a whole.
Schumer needs to apologize without delay or reservation.