Schumer, Roberts clash inflames partisan rift over Supreme Court

A clash between Senate Minority Leader Charles Schumer (D-N.Y.) and Chief Justice John Roberts is igniting a partisan fight over the Supreme Court as the justices move forward with a politically-charged docket during an election year.

Schumer stepped onto a political landmine when he warned that two conservative justices would “pay the price” if they voted against abortion rights, earning a rare rebuke from Roberts who called the comments “dangerous.”

That sparked an outpouring of GOP criticism and a long-shot censure threat from Sen. Josh Hawley (R-Mo.), while Democrats countered that Schumer’s remarks had been mischaracterized and accused Republicans of not being equally critical of heated rhetoric from President Trump. 

Schumer appeared to try to cool temperatures on Thursday, acknowledging from the Senate floor that he misspoke while also standing by his criticisms of the conservative majority on the high court’s bench.  

“My point was that there would be political consequences, political consequences for President Trump and Senate Republicans if the Supreme Court … stripped away a women’s right to choose,” Schumer said.

“I shouldn’t have used the words I did, but in no way was I making a threat. I never, never would do such a thing. And [Senate Majority] Leader [Mitch] McConnell knows that. And Republicans who are busy manufacturing outrage over these comments know that,” he added.

But the flareup is the latest sign of the growing politicization of court fights within a normally clubby Senate, which has been buffeted in recent years by bare knuckle brawls over the confirmation of Justices Neil Gorsuch and Brett Kavanaugh, the two Trump appointees Schumer had referred to. 

The partisanship played out on the Senate floor as senators traded jabs in back-to-back speeches. 

“I’m not sure where to start. There is nothing to call this except a threat, and there is absolutely no question to whom … it was directed,” said McConnell (R-Ky.) “The minority leader of the United States threatened two associate justices of the U.S. Supreme Court by name, period.” 

McConnell was quickly countered by Schumer and Sen. Dick Durbin (D-Ill.), Schumer’s No. 2. 

“I respect Chief Justice John Roberts, but I respectfully disagree with the statement he made yesterday about Senator Schumer’s comments before the Supreme Court building. It is not in Chuck Schumer’s nature to physically threaten anyone, or to create a dangerous situation for any person. That is just not Chuck Schumer,” Durbin said. 

He also made a pointed jab at McConnell’s decision to leave a Supreme Court seat vacant for roughly a year after Supreme Court Justice Antonin Scalia died, questioning if McConnell thought senators “have forgotten what he did when it comes to this Supreme Court after Justice Scalia passed away?” 

“What troubles me is that his being admonished publicly by President Donald Trump for his use of words. … It just takes your breath away to think that the president with his thousands of tweets and statements and utterances, outrageous as they have been, would be standing as a judge of others when it comes to the use of language,” Durbin added.

The incident comes a week after Trump attacked liberal justices Sonia Sotomayor and Ruth Bader Ginsburg and demanded that they recuse themselves from his own cases set to be heard later this month. Roberts did not break his silence to respond to those attacks.

Trump on Wednesday night criticized Schumer for his remarks.

“There can be few things worse in a civilized, law abiding nation, than a United States Senator openly, and for all to see and hear, threatening the Supreme Court or its Justices,” he tweeted. “This is what Chuck Schumer just did. He must pay a severe price for this!”

House Speaker Nancy Pelosi (D-Calif.) noted that Schumer walked back his remarks, adding “I support him in that.” 

“It’s unfortunate because as you see I think the Republicans say it’s okay if the president does it, but it’s not okay if other people do it. It wasn’t right for anybody to do it, and Chuck recognized” that, Pelosi told reporters. 

But Schumer’s apology did little to temper criticism from Republicans. 

Hawley rolled out his censure resolution on Thursday afternoon with the support of 14 GOP senators that, if passed, “censures and condemns in the strongest possible terms.” 

The controversy began when Schumer appeared at a rally in front of the court on Wednesday as the justices were hearing oral arguments in a case over a controversial Louisiana law that requires abortion doctors to have admitting privileges at nearby hospitals.

“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price,” Schumer said at the rally. “You won’t know what hit you if you go forward with these awful decisions.”

In a rare public statement, Roberts denounced the comments as “dangerous” on Wednesday afternoon.

“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 in the statement. “All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”

It was a rare public move from Roberts. The chief justice also spoke out against Trump in 2018 when the president criticized an “Obama judge” for ruling against one of his immigration policies.

The renewed fight is playing out as the court is preparing to rule on a host of controversial political cases just months before the 2020 election.

By the end of the court’s term in June, it will have issued decisions on cases involving subpoenas for Trump’s tax returns, gun rights, deportation protections for undocumented immigrants, workplace discrimination against LGBT employees and public funding for religious schools.

It’s the first full term with both of Trump’s appointed justices on the bench and without the retired Anthony Kennedy’s swing vote tempering the ambitions of the conservative majority. Many progressive advocates have been pushing Democratic leaders and presidential candidates to speak out more forcefully on the court out of concern that it could be preparing to strike down a number of liberal cornerstones.

Though Schumer has admitted the comments were a mistake, the uproar could provide an opening for both sides to highlight the court’s agenda this term. And it’s likely to increase the spotlight on Roberts, who has warned against the courts being dragged into partisan fights.

Brian Fallon, the executive director of the progressive group Demand Justice, said that it’s “fully appropriate” for political leaders to call out what he sees as the court’s partisan agenda.

“The Court’s entire docket this year has already guaranteed that it will be at the center of debate in 2020,” Fallon said in a statement. “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.”

Republicans painted the controversy as the latest example of Democrats moving to the left on the courts ahead of the 2020 election.

“Our members are going to continue to point out that this is what you get if you get a Democratic majority. They’re going to want to reshape the court,” said Sen. John Thune (R-S.D.), the No. 2 Senate Republican.