Even Senate Minority Leader Charles E. Schumer said Thursday that he should not have used the words he did on the sidewalk in front of the Supreme Court — but by then his comments turned the simmering tensions of election-year politics into a full boil.
Chief Justice John G. Roberts Jr., who usually avoids politics like it had the coronavirus, issued a rare public comment Wednesday directed at a sitting member of Congress over Schumer’s “threatening statements” that are “not only inappropriate, they are dangerous.”
From there, for better or worse, the Supreme Court got mired in the muck as it decides a slate of politically explosive cases about President Donald Trump’s financial records, immigration, LGBT rights and abortion before the end of June. And the episode gave both Democrats and Republicans a villain to rail against.
To reset the stage, here’s the key part of Schumer’s comments as the Supreme Court considered the constitutionality of a Louisiana abortion clinic regulation:
“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. We will tell President Trump and Senate Republicans, who have stacked the court with right-wing ideologues, that you will be gone in November, and you’ll never be able to do this again.”
Many legal and political commentators from both sides of the ideological spectrum said Schumer’s comments were inappropriate. Roberts, in his statement, stopped the quote before getting to the part about Trump and Republicans and the election. So did some Senate Republicans who called on Schumer to apologize, or even face censure.
“To me, this sounds like he is talking about a physical price, violence,” Senate Republican Conference Chairman John Barrasso of Wyoming said Wednesday on the Senate floor.
Missouri Republican Sen. Josh Hawley, a former Roberts clerk, tweeted that Schumer “is threatening Supreme Court Justices personally, to the point of implying their physical safety is endangered.”
Democrats took their shots as well, and used the incident to point out their concerns about partisanship at the Supreme Court. Sen. Sheldon Whitehouse of Rhode Island called Roberts the “architect” of partisan, 5-4 decisions for big Republican donor interests who “has zero credibility playing umpire in any political squabble.”
Schumer’s spokesman fanned the flames Wednesday in a statement that did not back down and described Roberts as following “the right wing’s deliberate misinterpretation” of the comments.
Majority Leader Mitch McConnell, on the floor Thursday, said that “if any American had these words shouted at them from the sidewalk outside their office, they would hear those threats as personal, and most likely they would hear them as threatening or inciting violence.”
And McConnell ended with a political message: “As long as this majority holds the gavel, we will never let the minority leader’s dangerous views become policy. This majority will ensure the only casualties of this recklessness are the reputations of those who engage in it.”
Schumer took to the floor Thursday to say he should not have used the words he did on the sidewalk in front of the Supreme Court, that they didn’t come out the way he intended, and that “in no way was I making a threat.”
“Of course I didn’t intend to suggest anything other than political and public opinion consequences for the Supreme Court, and it is a gross distortion to imply otherwise,” Schumer said. “I’m from Brooklyn; we speak in strong language.”
Schumer also made his political points: Republicans have worked systematically to install judges who will take down Supreme Court rulings that give women the constitutional right to an abortion. “To the women of America, what we’re talking about here, what I am fighting for here, is your right to choose,” Schumer said.
Durbin followed him on the floor to criticize McConnell’s controversial moves on holding open a Supreme Court vacancy left by Justice Antonin Scalia’s death until Trump’s election.
And he criticized Trump, who tweeted three times about Schumer’s statement, including that the minority leader “must pay a severe price for this!” and “has brought great danger to the steps of the United States Supreme Court!”
“What troubles me is his being admonished publicly by President Donald Trump for the use of his words,” Durbin said. “It just takes your breath away to think that this president, with his thousands of tweets and statements and utterances, as outrageous as they have been, would be standing as a judge of others when it comes to the use of language.”
This isn’t the first time Roberts has weighed in on politicians’ words. In November 2018, Roberts issued a rare statement to defend the independence of the judiciary after Trump said it was “an Obama judge” who ruled against an administration immigration policy.
Trump has made comments about judges and justices several times during his presidency, including last month when he used Twitter to criticize the judge and a juror in the Roger Stone criminal trial, as well as call out Justices Ruth Bader Ginsburg and Sonia Sotomayor to say they should recuse themselves from cases about him.
But Roberts did not make statements then, so his rebuke of Schumer on Wednesday, even if the right call, took some criticism of its own. Roberts is a George W. Bush appointee whose instincts as chief justice have been to try to keep the Supreme Court from appearing political or stepping into the role of the political branches.
“I agree with the Chief Justice that Senator Schumer’s comments were utterly inappropriate,” University of Texas law professor and appeals court watcher Steve Vladeck tweeted. “But there’s a risk to statements like this — unless the Chief plans to speak out whenever a political leader says something incendiary about the Justices, like accusing them of personal bias.”
A Schumer spokesman called out Roberts on Wednesday on that issue, as did Demand Justice, a liberal advocacy group that focuses on the federal courts.
“The Court’s entire docket this year has already guaranteed that it will be at the center of the debate in 2020,” the group’s executive director, Brian Fallon, said in a news release. “Schumer was right to warn the Court against continuing to act so politically. Roberts ought to brace himself for plenty more criticism in the months to come.”
The Supreme Court will hear arguments March 31 in one of the most politically explosive cases: whether Congress can subpoena Trump’s financial and tax records from his accounting firm.
Durbin, on the floor Thursday, suggested that the Senate move forward. “Dwelling on this particular chapter doesn’t serve the American people,” he said. “They didn’t send us here to squabble and fight.”
Outside the Senate Judiciary Committee hearing, Chairman Lindsey Graham said he agreed with Roberts about Schumer’s comments, and “we live in very emotional, dangerous times. It’s just like throwing fuel on a fire.”
If Schumer “sets the record straight, that would go a long way to fixing this, because one thing I’d say about the times we live in: Everybody’s running hot, and I don’t want to get into the censuring business unless you have to,” Graham said.