WASHINGTON — The chief justice of the United States and the highest-ranking Senate Democrat got into a war of words Wednesday that epitomized how the relationship between our legislative and judicial branches has taken a severe turn for the worse.
Senate Minority Leader Chuck Schumer, D-N.Y., early in the day warned Supreme Court Justices Brett Kavanaugh and Neil Gorsuch “you will pay the price” and “you won’t know what hit you” if they rule against reproductive rights.
That prompted a highly unusual rebuke from Chief Justice John Roberts, 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 saying 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.
That explanation 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 Kavanaugh and Gorsuch 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 who 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 directly address the justices with whom he disagreed on Citizens United, prompting Justice Samuel Alito 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. Senate Majority Leader Mitch McConnell, R-Ky., has also increasingly employed this approach.
Trump has also frequently attacked judges who make rulings he disagrees with, calling them “Obama judges.” Roberts has seen fit to rebuke Trump for this (which is worth emphasizing given Schumer’s office criticized him for not doing it last week). Gorsuch rebuked Trump, too, during his nomination over Trump’s attacks on judges.
Just last week, Trump urged two justices to recuse themselves from cases involving him – the incident Schumer’s spokesman suggested Roberts should have weighed in on. 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,” and “the country will reap the whirlwind” — a comment which Schumer’s remarks Wednesday appeared to recall.
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.