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Justice Roberts was right about Schumer’s language, wrong to selectively call him out | COMMENTARY

Senate Minority Leader Sen. Chuck Schumer (D-NY) speaks in an abortion rights rally outside of the Supreme Court as the justices hear oral arguments in the June Medical Services v. Russo case on March 4, 2020 in Washington, DC.
Senate Minority Leader Sen. Chuck Schumer (D-NY) speaks in an abortion rights rally outside of the Supreme Court as the justices hear oral arguments in the June Medical Services v. Russo case on March 4, 2020 in Washington, DC. (Sarah Silbiger/Getty Images)

At a Wednesday rally outside the U.S. Supreme Court, Senate Minority Leader Charles Schumer had some pointed language about the most recent appointees to the high court and the prospect that they may be rolling back women’s reproductive rights under a case involving Louisiana’s highly-restrictive anti-abortion law heard that morning by the court.

“I want to tell you, [Justice Neil] Gorsuch; I want to tell you [Justice Brett] Kavanaugh: You have released the whirlwind, and you will pay the price,” Sen. Schumer said. “You won’t know what hit you if you go forward with these awful decisions.”

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It was later explained, through a spokeswoman, that the intent was not to threaten anyone and that the price to be paid was purely a political one by Senate Republicans, who had stacked the court with right-wing ideologues. But Chief Justice John Roberts was clearly upset by the choice of words and issued a statement, something rarely done by this or any federal court, to denounce them.

“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.” Justice Roberts said, adding that the justices will continue to do their jobs “without fear or favor from whatever quarter.”

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We aren’t comfortable with Sen. Schumer’s language either. But then, we weren’t comfortable with the strikingly similar formulation offered by Mr. Kavanaugh at his own confirmation hearings in 2018.

“Since my nomination in July, there’s been a frenzy on the left to come up with something, anything, to block my confirmation,” he told Democrats on the Senate Judiciary Committee. “You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.”

The only thing missing was a microphone and some courthouse steps with sign-waving supporters.

Justice Roberts had nothing to say about that comment from a fellow member of the judiciary at the time. Nor did he speak up last week when President Donald Trump aggressively went after two other Supreme Court justices, telling an audience in India that Sonia Sotomayor and Ruth Bader Ginsburg should recuse themselves from any cases involving him.

It was, of course, hardly the first time that Mr. Trump saw bias against him on a federal court. Perhaps the worst example to date was his 2016 criticism of Judge Gonzalo Curiel for lacking impartiality in a matter involving then-candidate Trump’s dubious “Trump University” because of his Mexican heritage. Or there’s the time in 2018 when President Trump described a federal judge as an “Obama judge” after an adverse ruling on migrant asylum policy. Or perhaps just about any month on the presidential Twitter feed when he’s threatening someone or other, such as his prediction of war if he’s removed from office.

“If the Democrats are successful in removing the President from office (which they will never be), it will cause a Civil War like fracture in this Nation from which our Country will never heal,” he tweeted just six months ago.

Mr. Roberts hasn’t been entirely silent. He did have some cross words over the “Obama judge” crack issuing a statement that observed, in part, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges." But that was a relatively mild rebuke compared to the Schumer reprimand, which included the pronouncement that the senator’s rally remarks were “dangerous.”

Yet if judges, particularly the chief judge of the nation’s highest court, want to be perceived as impartial umpires calling balls and strikes without favor to one team or another, they need a consistent strike zone. Mr. Roberts ought to either call out all bad behavior or none at all. The standard here is impossible to discern. And it’s particularly problematic given how the federal courts are being tilted to the right with the Trump administration’s unceasingly policy of appointing judges who conform to Federalist Society criteria.

It’s fair to admonish Senator Schumer for sliding into second with his spikes up, but it is not fair to then ignore the sign stealing or other equally inappropriate actions on the other side, including by the current occupant of the Oval Office.

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