Chief Justice and Senator Trade Remarks: Further Erosions of the Court's Legitimacy?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Chief Justice Roberts issued a rare statement today rebuking statements by Senator Chuck Schumer made while the Court was hearing arguments in June Medical Services v. Russo. The Chief Justice's statement read in full:

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 he wanted to tell them that “You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions.” 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. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

Senator Schumer's speech, reported and captured on video, included the Senator saying:

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.

Schumer's "whirlwind" reference echoed Kavanaugh's statements during his confirmation hearings to the Democratic Senators, telling them “You sowed the wind, the county will reap the whirlwind.”

 

A Presidential tweet predictably followed Roberts's statement:

 

This is a direct & dangerous threat to the U.S. Supreme Court by Schumer. If a Republican did this, he or she would be arrested, or impeached. Serious action MUST be taken NOW! https://t.co/WqQUbyzaJU

— Donald J. Trump (@realDonaldTrump) March 5, 2020

As some commentators — and a spokesperson for Senator Schumer — have pointed out, Chief Justice Roberts has not issued statements defending Justices Sotomayor and Ginsburg when they were maligned by the President, as we discussed here.

Indeed, because Chief Justice Roberts has chosen to make this statement, his choices of when not to make similar statements is now a very legitimate subject of debate. These choices add to the continuing debate about the Court's own legitimacy in this fraught political climate.