Defending the independence of the federal courts against loudmouthed politicians from New York has become an unfortunate but necessary part of Chief Justice John G. Roberts Jr.’s job.
In 2018, after President Trump denounced a ruling against the administration by “an Obama judge,” Roberts rebuked the president, declaring: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
On Wednesday, Roberts rightly condemned an outrageous comment by Senate Democratic leader Chuck Schumer. Speaking outside the Supreme Court as the justices were hearing a case involving a restrictive Louisiana abortion law, Schumer used what could only be considered threatening language against two justices appointed by Trump, Neil Gorsuch and Brett Kavanaugh.
“I want to tell you, Gorsuch, I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price,” Schumer said. “You won’t know what hit you if you go forward with these awful decisions.”
To which Roberts responded: “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.”
At first, Schumer’s office tried to defend his ugly remarks, suggesting that threatening language directed at the two justices was really 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.” That was ridiculous revisionism.
The senator’s spokesman also engaged in some whataboutery, complaining that Roberts didn’t speak up last week when Trump criticized Democratic-appointed Justices Ruth Bader Ginsburg and Sonia Sotomayor. But the comparison isn’t apt. Trump had suggested (absurdly) that Ginsburg and Sotomayor recuse themselves from “all Trump, or Trump related, matters.” He didn’t warn them that they would “pay the price” for not ruling a certain way.
(Trump attempted to capitalize on the Schumer controversy by tweeting that “Schumer has brought great danger to the steps of the United States Supreme Court.” To put it mildly, Trump has zero credibility as a defender of judicial independence.)
Of course, there is a political context to Schumer’s outburst. Most Democrats opposed the confirmation of Trump’s Supreme Court nominees, and they are understandably still seething over the way Senate Republicans blocked President Obama’s nomination of Judge Merrick Garland to the seat eventually occupied by Gorsuch. They are also still angry about the way Kavanaugh lectured senators during his contentious confirmation hearings. (He told Democrats on the Senate Judiciary Committee: “You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.”)
But none of that is an excuse for Schumer’s bully-boy language.
On Thursday, Schumer finally offered a kind of apology, saying on the Senate floor that he “should not have used the words I used yesterday. They didn’t come out the way I intended to.” He then offered a kind of cultural defense: “I’m from Brooklyn. We speak in strong language.” Threatening judges if they don’t rule your way is outrageous regardless of where you grew up.