When Nina Totenberg, National Public Radio’s Supreme Court correspondent, was asked to comment on what Senator Chuck Schumer said about Justices Gorsuch and Kavanaugh relative to June Medical Services v. Russo, the Louisiana abortion provider case argued last week at SCOTUS – but more pointedly to comment on what Chief Justice Roberts said in response and rebuke of Schumer – Totenberg’s response was that “it all began” with Trump attacking Justices Ginsberg and Sotomayor and demanding their recusal in cases involving him and his administration.
First, the he said he said:
Schumer: “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.”
Roberts: “This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two members of the Court by name and said. . . Justices know that criticism comes with the territory, but threatening statements of this sort. . . are not only inappropriate, they are dangerous.”
And what she said (Totenberg) is bunk, wrong and exemplifies a point of view liberals should reject along with Schumer’s loss of his senses. We give Schumer benefit of the speculation that momentarily he lost control rather than weighed and delivered his words in cold blood – though upon examination his formulation appears studied.
Roberts probably considered scolding Trump for the previous week’s attack on RBG and SS and rebuking the President as he had in 2018 after Trump’s tirade about “Obama judge[s]” and Trump judges.
But this time Roberts probably concluded that Trump’s demand for recusal was not only futile but so obviously idiotic to most Americans (including Trump supporters) that they would chalk it up to another “that’s just what Trump does all the time.”
Rebukes from Article III chiefs to electeds from Articles I and II are the rarest constitutional species and should stay that way. Otherwise they lose their power. The two delivered by Roberts, of Trump in 2018 and of Schumer last week, might rank Roberts as the all-time leader in this category.
The danger in Chuck Schumer’s rant is obvious. Despite the unscientific observation that in recent years the American right has produced far more issue driven domestic terrorism than the left – we still have had ours. Consider, James Hodgkinson, who opened fire on Congressman Steve Scalise and others at a practice session for the Congressional Baseball Game. And just last week some on the left debated whether the recently deceased Rafael Cancel Miranda had been a terrorist or a political prisoner. Miranda, a Puerto Rican nationalist was the primary gunman in a March 1, 1954 attack in the Capitol that left five members of the House of Representatives wounded.
Inevitably some on the left go there, but let’s not encourage nor absolve them. When we do, I hear the ultimate terrorist and traitor in the White House crooning about Charlottesville, that there were bad and good people on both sides.
Bonus prediction: In June Medical Services the Court will rule that the Louisiana abortion statute is unconstitutional. The vote will be 5-4, with Justice Roberts writing the majority opinion and relying heavily upon the principles of stare decisis. And there is some possibility that Kavanaugh will join in such decision making it 6-3. Perhaps that is equal parts prayer and prediction.