A Political Judiciary – Sunday Edition
When I was commenting at Slate’s Moneybox and Best of the Fray sites at least a decade or so ago, Dahlia Lithwick had taken over Jurisprudence. She always gave a sound and fair analysis of court decisions, the impacts of those decisions, and the resulting politics coming out of them. Fast forward . . . I was reading Schumer’s “reap the whirlwind” comments wondering why he would make such and then wondering why Chief Justice Roberts had not winced sooner on remarks being made about judges and justices while occupying his pulpit chair looking down at the rest of us. Schumer’s remarks are a replay akin to what Justice Brett angrily said to the Senate Judiciary Committee. It has not gone unnoticed that Republicans white wash their ilk, Democrats eat their own, and those who comment fail in their commentary to treat this for what it is.
“Roberts Denounces Schumer for Talking About Kavanaugh the Way Kavanaugh Talked About the Senate,” Slate’s Jurisprudence, Dahlia Lithwick
“On Wednesday, Senate Minority Leader Chuck Schumer had a message for Donald Trump’s two nominees to the Supreme Court as the court heard oral arguments in a landmark abortion case that threatens one of the underpinnings of Roe v. Wade. “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 of the pair’s jurisprudence since arriving on the bench. “You won’t know what hit you if you go forward with these awful decisions.”
By Wednesday afternoon, Chief Justice John Roberts had the Supreme Court’s press office issue a stunningly rare and stinging rebuke under his signature:
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.
If Schumer’s repudiated words sounded at all familiar to you, or to the chief justice, it might be because at his confirmation hearing, then-Judge Brett Kavanaugh turned to the Senate Democrats on the Judiciary Committee and pledged as follows:
Since my nomination in July, there’s been a frenzy on the left to come up with something, anything, to block my confirmation. You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.
The upshot here is that Schumer didn’t necessarily start this fight and maybe the guy whose honor Roberts just jumped in to defend bears some responsibility for the threatening rhetoric. Since striding onto the national stage, Roberts has claimed the mantle of being the balls-and-strikes guy at the high court. This is one of those instances, though, in which Umpire Roberts clearly can only see one side of the plate. To his credit, he has, on occasion pushed back against some of Trump’s most extreme efforts to upend our democratic institutions and pushed back against a few of the president’s worst threats to the judicial branch, most notably when Trump implied last year that judges appointed by Barack Obama were illegitimate.
At the time Roberts said:
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
But Roberts — whose entire daily life has been reduced to a Shakespearian tragedy in which he must pretend to float above the sordid reality of trashed institutions and shattered judicial norms while at all times secretly rooting for the team that wears the MAGA jerseys—has drawn a truly terrible card in this whole constitutional poker game called the Trump presidency. It’s been a pickle, but for the most part, even through the living hell of the impeachment trial and the dramatic end of the last term, he’s managed to thread a sort of pox-on-both-your-houses needle when constitutional players behave in an unseemly manner. Indeed, if Wednesday morning’s arguments in June Medical serve any kind of predictive value, Roberts was again caught between the rock that is his careerlong desire to overturn Roe and the hard place that was the staggeringly garbage legal arguments from counsel representing Louisiana in its efforts to help him achieve it.
Still, it beggars belief the same chief justice who stood by silently at Trump’s direct attacks at federal judge after federal judge, hit snooze last week at presidential attacks on Ruth Bader Ginsburg and Sonia Sotomayor and on Amy Berman Jackson as she was poised to sentence Roger Stone, and he is now going to fire up the creaky old Supreme Court teletype machine to rebuke Chuck Schumer for saying the same thing Brett Kavanaugh said a little more than a year ago.
Maybe the whole threat of whirlwinds is somehow less threatening when it’s coming from a federal judge and directed at Senate Democrats than it is in a speech coming from a Senate Democrat directed at federal judges. Or maybe a threatening speech from a judge is somehow less threatening after he wins lifetime tenure? Anyone else in America could be forgiven for not recognizing that Kavanaugh’s threats in 2018 were almost word for word repeated by Schumer on Wednesday. But for a chief justice who prides himself on minimalism, humility, and a robust grasp of both history and the long game, the choice to rebuke only one judicial critic in this context puts the lie to the whole project of soaring neutrality and the grim calling of pitches. Threats are threats, whirlwinds are whirlwinds, and judges remain in daily fear of public revolt. All of them, male and female, district court, and the guy who sits next to you. Singling out only the threats that happen on your front steps doesn’t make you neutral—it makes you parochial, and in the worst possible way.”
In the end, I guess women who are judges and justices do not count?