Chuck Schumer's Bizarre Supreme Court Threat

(Bloomberg Opinion) -- Ordinarily, Chuck Schumer is the very model of a rational, calculating politician who does things for deliberate strategic reasons. So what in the world was he thinking when he stood in front of the Supreme Court building during oral arguments on an important abortion case and threatened two conservative justices by name? 

Schumer's language was so extreme as to be almost bizarre: “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.”

It immediately backfired on Schumer. Chief Justice John Roberts — rightly, in my view — issued an unusual public statement repudiating the attacks: “Statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” he wrote.

Schumer is too smart not to have seen this coming. After all, in the past, Roberts issued a statement defending the judiciary and implicitly rebuking President Donald Trump after he referred to “Bush judges” and “Obama judges.” Schumer's foray was far more challenging to judicial independence.

That leaves the question of Schumer's intent.

My guess is that Schumer is trying to motivate the Democratic base to start caring more about Supreme Court appointments –and therefore to donate money so that Democrats can try to win back the Senate, without which even a Democratic president will not be able to make any Supreme Court appointments. Justices Neil Gorsuch and Brett Kavanaugh aren't just any two conservatives. They're Trump's two Supreme Court appointees.

Schumer presumably picked the day the abortion case was being argued to make his threats because he was aiming to create headlines that would remind Democrats of the reality that Trump has appointed justices who could change the fundamental balance of the court.

If I'm right about Schumer's motives, the ploy was intended to focus attention on the Trump-appointed justices and to adopt a newly combative attitude that would help Democrats win back the Senate.

It's a good idea for Democrats to start caring a lot more than they traditionally have about Supreme Court appointments. It would be great to motivate Democratic base to care about winning back the Senate.

But the way Schumer has gone about it is entirely wrong — and he ought to apologize for his statement and change his rhetoric immediately.  

The first problem with Schumer's attack is that the judiciary really is a vulnerable institution, and never more so than under the Trump administration. It's wildly irresponsible for the Senate Minority Leader — or for any politician — to threaten judges of any rank.

The institutional capacity of the judiciary isn't built on any coercive power. That's why Alexander Hamilton famously called the judiciary “the least dangerous branch.” The courts don't have guns to enforce their rulings. The only reason that the executive or legislative branches do what the judges say is that there is a carefully built norm of respect for the rule of law that says they should.

Trump's specialty is unsettling the unwritten norms that keep our constitutional democracy going, especially those norms connected to the rule of law. When he undercuts the judiciary, he's doing it in order to weaken the court's legitimacy so that he can get away with flouting the law and the Constitution.

When Schumer adopts Trumpian tactics, he contributes to undercutting the judiciary. Worse, he signals to ordinary people that both parties think it's fine to undercut judicial power.

That is how norms get destroyed. First one side treats them as nonbinding. Then the other side says fine, I'll do it too. Then the norm is gone.

That's why Roberts was completely correct to respond to Schumer. As Chief Justice, Roberts is trying to defend the legitimacy of the institution he leads. And he's doing the best he can under tough circumstances.

That leads me to the second major problem with Schumer's attack: It alienates Roberts at exactly the moment when Democrats need him the most. Roberts's position in the current abortion case before the court is genuinely unknown. He dissented when the court decided the same issue 5-3 against Texas a few years ago. But Roberts cares about precedent, and he won't want it to look like the court changed its stance simply because Gorsuch and Kavanaugh replaced Justices Antonin Scalia and Anthony Kennedy.

Even Roberts's comments during oral argument suggested he was thinking seriously about the precedent issue. For that matter, so did Kavanaugh's. We don't know yet how either will rule.

Schumer's attacks unfortunately increased the possibility that Roberts might join the other conservatives and reverse the abortion precedent. Roberts's objective is that the public not see the courts as purely partisan. But if Democrats are going to see them that way regardless, and try to push around judges to boot, why bother?

Does Schumer really want the justices to take an important step towards overturning Roe v. Wade? Maybe that would motivate Democrats to care about the Senate and the court. But the human cost is far too high, and risk far too great. Schumer is playing with fire. He shouldn't.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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