Two years ago, Chief Justice Roberts condemned the Senate Democratic leader’s menacing rhetoric as ‘dangerous.’ Now, it’s clear how right Roberts was.
Two years ago, Chief Justice Roberts condemned the Senate Democratic leader’s menacing rhetoric as ‘dangerous.’ Now, it’s clear how right Roberts was.
I n March 2020, on the day that the Supreme Court heard oral arguments in a case challenging the constitutionality of a Louisiana law regulating abortion facilities, Senate Democratic leader Chuck Schumer appeared at a pro-abortion-rights rally on the steps of the Court where he threatened Justice Neil Gorsuch and Justice Brett Kavanaugh by name.
“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price!” Schumer shouted. “You won’t know what hit you if you go forward with these awful decisions!”
Schumer’s decision to target Gorsuch and Kavanaugh by name was so reckless that Chief Justice John Roberts took the unusual step of issuing a statement publicly rebuking a political leader. “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,” Roberts said at the time.
After Roberts called Schumer’s remarks “dangerous,” Schumer said in a Senate floor speech: “I should not have used the words I used yesterday. They didn’t come out the way I intended to.”
Now that a would-be assassin has been arrested outside Kavanaugh’s home and some conservatives have drawn fresh attention to Schumer’s reckless rhetoric targeting the justice, New York magazine’s Jonathan Chait has published a post contending that Schumer basically said nothing wrong in his March 2020 speech on the steps of the Supreme Court.
Chait’s defense of Schumer is that “Schumer was threatening a political response, not a violent response,” which is not much of a defense at all.
Chait does not even acknowledge that Chief Justice Roberts called Schumer’s remarks “dangerous”; nor that Schumer himself said he “should not have used [those] words.”
When Schumer later tried to clean up his remarks, he said that his “point was that there would be political consequences — political consequences — for President Trump and Senate Republicans if the Supreme Court, with the newly confirmed Justices, stripped away a woman’s right to choose.”
No one would have been outraged if Schumer had merely said that “Trump and Senate Republicans” would pay the price in the November elections, but Schumer said much more than that. He singled out two sitting Supreme Court justices by name and said to them: “You will pay the price! You won’t know what hit you if you go forward with these awful decisions!”
Schumer’s vague and menacing threat could have meant any number of things — from Court-packing to baseless smears targeting the justices to impeachment proceedings to targeted harassment of Kavanaugh and Gorsuch.
Political threats against an independent judiciary are in and of themselves inappropriate. Justices Breyer, Kagan, and Sotomayor — echoing the Casey plurality opinion — asserted during the Dobbs oral arguments that political pressure to overturn Roe was one reason it must be upheld. That’s a silly argument — there’s political pressure to uphold or overturn any controversial decision, and it shouldn’t affect an analysis of what the Constitution does or does not say. But at the very least all sides can agree that there are forms of political pressure that are wrong, and Schumer’s intimidation of Gorsuch and Kavanaugh clearly falls into that category.
In fact, Schumer’s remarks were more than just inappropriate political pressure. I don’t think he was calling for violence, but his vague and menacing rhetoric was “not only inappropriate” but “dangerous,” as Chief Justice Roberts said at the time. Imagine that Kevin McCarthy or Mitch McConnell had appeared on the Supreme Court’s steps and used Schumer’s exact words to threaten Justices Kagan and Sotomayor by name. What would Jonathan Chait have said? What would the mainstream media have said? There would have rightly been howls of protest at the Republican leaders’ dangerous rhetoric.
Schumer’s March 2020 remarks threatening Gorsuch and Kavanaugh did not directly cause an armed man with a gun, a knife, and burglary tools to show up outside Brett Kavanaugh’s home, but they did contribute to a breakdown of norms under which targeted harassment of sitting Supreme Court justices had previously been unacceptable.
The assassination plot against Kavanaugh is a direct and foreseeable consequence of the May 2 leak of a draft opinion in the Dobbs case. The leak made clear that there was a five-justice majority willing to overturn Roe — a majority that could be erased by an assassin’s bullet before a final ruling was issued. Schumer and other top Democrats did not condemn the leak, and Schumer lied to the American people about what it would mean to overturn Roe: He said at a May 10 press conference that “MAGA Republicans” will pass anti-abortion laws with “no exception for the life of the mother,” but every pre-Roe abortion law in all 50 states included such an exception, as does every state abortion law designed to go into effect only if Roe is overturned.
Schumer gave his personal blessing to protests outside Supreme Court justices’ homes despite a federal law that forbids such protests. Dick Durbin, the second-ranking Democrat in the Senate, called the protests “reprehensible,” and Chait is at least willing to concede that Schumer was wrong here: “You can fairly impugn Schumer (whose home is the site of regular protests) for having endorsed the right of protesters to gather outside the homes of Supreme Court justices. Such protests are inevitably threatening to their targets, since they provide the perfect cover for an armed nut.”
But Schumer has not responded to the news that a would-be assassin showed up to Kavanaugh’s home with a Glock 17, zip ties, and a crowbar by telling progressives to cease their illegal protests outside Kavanaugh’s home.
Asked if Schumer had any statement about the assassination plot against Kavanaugh, Schumer spokesman Justin Goodman told National Review in an email on Thursday: “He is thankful law enforcement arrested this person today. He’s been clear that he supports peaceful protests.”
We once lived in a time when political leaders of both parties would have been expected to universally and forcefully condemn an almost-unprecedented assassination attempt against a sitting Supreme Court justice. Schumer’s refusal to issue such a condemnation on Thursday was a dangerous abdication of responsibility. His March 2020 remarks targeting Kavanaugh and Gorsuch, his support for protests targeting the residences of Supreme Court justices, and his lies about what overturning Roe would mean are all dangerous, too. His behavior is an ominous sign for the country.