Schumer’s Attack on Supreme Court Justices—Mission Accomplished

Mar 13, 2020 by David Fowler

U.S. Supreme Court justices from late 2018 with highlighting circles around Neil Gorsuch and Brett Kavanaugh
Original image of the U.S. Supreme Court sans highlighting circles on Neil Gorsuch and Brett Kavanaugh taken on November 30, 2018, and found on the website.
In my view, most pundits completely missed the point of Senator Chuck Schumer’s attack on Justices Neil Gorsuch and Brett Kavanaugh last week when the U.S. Supreme Court was hearing arguments on the constitutionality of Louisiana’s abortion law requiring abortionists to have hospital admitting privileges. While his language was over-the-top, his point was well-made, and I suspect he achieved his purpose.
In case you missed it, this is what Sen. 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.

Now, why did he say this? And why did he single out Gorsuch and Kavanaugh?

Why, for example, didn’t he lambast the U.S. Supreme Court in general if it overturned Roe v. Wade and Planned Parenthood v. Casey? Or, if he didn’t want to risk offending the reliably pro-abortion justices, why didn’t he call out the “conservative” justices or name all the allegedly “conservative” justices?

I think his very calculating point to the justices was this: All hell will break loose if the interpretation of the Constitution on abortion rights changes just because President Trump was able to get you two confirmed to the U.S. Supreme Court.

What Motivated Schumer to Such Strong Language?

Why might Sen. Schumer think this? Was it simply because, by their appointment, the 5–4 majority of justices in favor of interpreting the Constitution as a “living” document flipped to a majority of justices in favor of interpreting the words of the Constitution according to their original meaning and understanding?

Maybe. No doubt Schumer disapproves of that shift in philosophy of constitutional interpretation. But I think his ire and pointed remarks were about more than that.

What will really blow Schumer’s stack is if the Court uses the Louisiana case to reverse Roe and Casey when the Court was not even asked by the state of Louisiana to re-examine the interpretation of the Constitution made in those two cases. I wrote about this a couple of weeks ago.

To reverse Roe and Casey when not even asked to do so and when the legitimacy of their prior interpretation of the Constitution in those cases isn’t even before them would make the majority look like a bunch of partisan political hacks. It would look like the Court had gone from “interpreting” the Constitution to imposing its now-majoritarian will on the Constitution.

Moreover, it would sure look like the Court had reversed those decisions just because it has different justices than those it had a year ago. This kind of change in outcome is what we expect when a politically elected legislative body goes from control by one party to control by the other party, but not when new justices go on the Court. The assumption is that constitutional outcomes shouldn’t change just because the faces on the Court have changed, because the Constitution itself has not changed.

Why Roberts Fired Back

Since Supreme Court justices have a lifetime appointment, why wouldn’t Chief Justice John Roberts just laugh off Schumer’s comment as political pandering to a pro-abortion crowd?

Why did he respond by saying, “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”? (emphasis added)

What is dangerous? Did Schumer’s remarks stir up a greater risk of physical attacks on the justices? I don’t think so. Justice Roberts acknowledged that criticism comes with the territory, and critics can do crazy things.

I believe Roberts thinks it’s dangerous and fired back because he doesn’t want the Court to be seen by the public as a political institution rather than a deliberative body rising above politics to protect and guard the Constitution from encroachment by politicians. And such a view is more likely when politicians start treating the Court like any other political organization or institution and justices like any other politician.

Schumer, in my view, was touching on the thing that most concerns Chief Justice Roberts—the institutional integrity of the Court. Robert’s greatest fear is that the public will come to see the Court doing something more than merely “calling balls and strikes,” as he so famously said in his confirmation hearings.

I suspect Schumer touched a nerve with Chief Justice Roberts and the conservative members of the Court. I suspect his remarks hit home. So, don’t expect the Court to reverse Roe this summer based on the Louisiana case that was just heard.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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