Balkinization: There's No "I" in Supreme Court

Comments:

Gerard: Put bluntly, the Chief Justice lacks the stature necessary to convince the public when he is not speaking in an opinion.

Opinion? Judicial independence?

Senator Schumer's threats against the two Trump appointed justices to an angry mob of demonstrators in front of the Supreme Court speak for themselves.

Why would the CJ need the concurrence of his Dem appointed colleagues to publicly condemn Schumer's threats?

The better question is why those colleagues, and you, are not condemning Schumer on your own initiative?

# posted by

Bart DePalma : 10:32 PM

Roberts would do better to discipline his own side: Brett Kavanaugh's statements during his Senate hearing were disgraceful; Trump's repeated attacks on the judiciary have been met with silence by the supposed Chief Justice.

# posted by

Mark Field : 10:41 PM

I am delighted to see the Chief Justice become overtly partisan in this way -- it will pave the way for a Democratic majority in Congress to enact legislation that will enable a Democratic president to appoint sufficient additional justices to the Supreme Court to offset the partisan prejudices of the Trump-appointed justices. By contrast, the justices remained silent in 1970 notwithstanding then-Representative Gerald Ford's attempt to impeach Justice Douglas.

# posted by

HenryFTP : 12:03 AM

Give us a break, Henry: Democrats won't need any assistance in constructing a pretext for Court packing, should they find themselves in a position to do it. They've been talking about doing it for years, probably would already have done it if they'd captured Congress and the Presidency back in 2016 like they'd expected.

They'll just say something like, "Bad Orange Man picked too many Justices! The Court won't be legitimate again until it has a left-wing majority!"

And, seriously, Gerard, I'm with Bart on this: No problem at all with Schumer threatening Justices right in front of the Court's chambers, but it's unprofessional for one of them to complain?

# posted by

Brett : 5:25 AM

Hell not. He should stand firm. Showing resilience. Not concerning general public issues. But, when the court is attacked concerning its impartiality, he should vehemently attack. Too many groups, individuals, are more and more convinced, that ruling, is up to the judge and his personal ideological stance. This is very wrong perception. That thing must be stopped. Huge damage to the rule of law.

Here for example, I quote him recently:

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges,"

Here:

https://www.bbc.com/news/world-us-canada-46294734

And he ( or he and others) must do much more than that. Ignorance is huge. Reigning all over the nation.

Thanks

# posted by

el roam : 7:13 AM

I think Shumer's comments were wrong as a matter of 1. goals (he'll just embolden swing justices to break a recent precedent, always a bad look for the judiciary) and 2. decorum. But anyone who is criticizing him who did not denounce Trump's far worse violations of that decorum and Kavanaugh's far worse tirade is, of course, a hypocrite (or partisan incoherent). I do agree with the OP's point that if Roberts wanted a stronger statement he could easily have gotten a joint one.

I frankly feel for Roberts. He's considered a traitor for his minor deviations from the conservative wing (that's how partisan extremists are) and yet since his voting record is mostly conservative the Left affords him little respect. It's interesting to see how he's treated quite differently from Kennedy in that respect (the partisan extremists that make up the Right today of course still hated Kennedy as a traitor, but the Left afforded him much more respect and liking).

# posted by

Mista Whiskas : 7:17 AM

Well, from a conservative viewpoint, his "penaltax" ruling just came out of left field, (And I wrong the left by saying that, even the 'liberal' justices didn't sign onto his reasoning, only his outcome.) it's basically inexplicable except as a result of a totally result oriented approach coming from somebody who couldn't stomach the sort of reasoning necessary for the result to make sense. I mean, the freaking law SAYS it's a penalty! So, of course he's not going to get any respect from the right after that. And there are all these gun cases not getting certiori, when the Heller/McDonald majority ought to be intact; Somebody has gone to the dark side, and Roberts looks like the likely candidate for that.

And Kennedy earned his strange new respect at a time when the left hadn't gone completely off its rockers, and could spare some love for somebody on the other side who'd defect. Now the left views everybody from the right as eternally damned beyond redemption, so no tidbits thrown their way are going to mean anything.

The 'liberal' justices were a lock to uphold the law, but that's not surprising, they're a lock to uphold basically anything the Democratic party comes up with, they're committed to a ideology that basically says that the Constitution will always permit 'liberal' laws. Their decisions might be wrong from a conservative viewpoint, but they're at least coherent.

There are few "minor deviations" from them for the left to get upset about, given the way the 4 'liberal' justices vote as a block.

# posted by

Brett : 7:51 AM

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# posted by

Bart DePalma : 8:54 AM

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# posted by

Bart DePalma : 9:12 AM

"Democrats won't need any assistance in constructing a pretext for Court packing, should they find themselves in a position to do it. They've been talking about doing it for years, probably would already have done it if they'd captured Congress and the Presidency back in 2016 like they'd expected."

I wish you were right about this, but you're wildly off base. I seriously doubt court reform would get a majority of Senate Dems in favor, and it might not even get a majority of the current House. Henry's point is correct: if Roberts continues to rub his partisanship in their faces, there's a small chance that Congressional Dems will come to see its necessity.

# posted by

Mark Field : 9:25 AM

Mr. W: But anyone who is criticizing him who did not denounce Trump's far worse violations of that decorum and Kavanaugh's far worse tirade is, of course, a hypocrite (or partisan incoherent).

Please.

When precisely did Trump or Kavenaugh threaten "You won't know what hit you if you go forward with these awful decisions" or its equivalent to a judge considering a case? Provide quotes.

Schumer's pathetic defense was to compare his threats to an angry crowd with Trump demanding Ginsberg and Sotomayor recuse from his cases after making derogatory comments about him to the press.

Or perhaps you are referring to Trump's factual complaint about the "Obama judges" (and Clinton judges) issuing national injunctions against his perfectly legal policies, some of which were re-employments of Obama policies?

Kavenaugh was justifiably furious about a Democrat campaign of slanders meant to destroy him professionally and personally, stating: "You sowed the wind and the country will reap the whirlwind." The judge was paraphrasing the biblical passage "They that sow the wind, shall reap the whirlwind" from Hosea 8:7, suggesting the country would suffer from the Democrat slander campaign.

Because you cannot offer any reasonable counterparts to the Schumer threats, I expect you will instead respond with your usual name calling or a change of subject. Regardless, you have again served your purpose as a teaching tool.

# posted by

Bart DePalma : 9:42 AM

"So, of course he's not going to get any respect from the right after that."

Bircher Brett makes my point, as he so often and always unwittingly does. The incredible ire the Right has about Roberts really boils down to his ACA decision (of course Bircher Brett also has a conspiracy theory [denying the 2nd Amendment certs] he can't substantiate and yet is confident about, this wouldn't be him we're talking about without one!). The guy votes conservative, often with great fire, about 98% of the time. But he voted that one time wrong so he's the enemy. This is how the Right works, keeping a tight orthodoxy. It's no wonder that RINO is common parlance in Right wing circles whereas most Democrats don't know what a DINO would be (other than Flintstones character). The fact that Roberts vote drawing such ire came in a case about the defining, namesake policy of our first African-American President is surely a coincidence....

The funny thing for those who know a little law and history is that Robert's vote in that case was from what is *legally* a traditionally conservative doctrine: constitutional avoidance (which was much praised by conservative back when they posed as believing in 'judicial restraint').

# posted by

Mista Whiskas : 10:03 AM

Lol, poor Bircher Bart has some doozies. He famously guaranteed a Romney victory here. He guaranteed that WMDs were/would be found even after Bush, Powell, etc., admitted they were wrong. He argued the term 'persons' changed meaning from the first part of the 14th to the second. He said he'd support Trump even if Trump committed clear murder (and he supports Trump now after confidently calling him a fascist throughout most of the GOP nominating contest). He recently said there was 'zero evidence' that Trump ever asked Ukraine's leader to investigate the Bidens long after the White House itself released the quasi-transcript demonstrating this. And he recently concocted a conspiracy theory that the prosecutions of Lev Parnas and Michael Cohen were political hits to smear Trump even though the DA in charge of the office of the prosecutions is a Trump appointee who worked on Trump's transition team and donated thousands of dollars to Trump's campaign.

This is not a serious man. This is a partisan incoherent at best.

But here he even, as he often does, slays himself in his partisan incoherence.

Shumer said Kavanaugh would reap the whirlwind as that is a reference to the *direct quote* that Kavanaugh used about 'Democrats' in his angry rant during confirmation, as Bircher Bart has to acknowledge (well, he doesn't have to, as with the WH quasi-transcript, WMDs, etc., he has denied demonstrable reality before). They're not just directly equivalent, they're the *same quote.* Also see Kavanaugh's 'what comes around goes around.'

And note, politicians are, of course, less held to the type of decorum I'm talking about than judges.

# posted by

Mista Whiskas : 10:18 AM

"Now the left views everybody from the right as eternally damned beyond redemption"

I'd like to note for the record that when Bircher Brett first started to use this talking point, I mean line of argument, his example was Democrat candidates attacking Biden for his defense of busing.

Yeah, the left really showed they viewed Biden as eternally damned beyond redemption recently....

Lol, these people get caught in contradictions so much because *they have no principles* to adhere to, they're just partisan incoherent. Whatever they're saying now is just whatever they think is useful to some cause based on general feelings they have. It'll change tomorrow if need be.

# posted by

Mista Whiskas : 10:23 AM

Here by the way:

"Roberts Accuses Schumer of ‘Threatening’ Justices"

https://www.usatoday.com/story/news/politics/2020/03/04/chief-justice-john-roberts-scolded-chuck-schumer-comments-kavanaugh-gorsuch/4956861002/

# posted by

el roam : 11:00 AM

And, seriously, Gerard, I'm with Bart on this: No problem at all with Schumer threatening Justices right in front of the Court's chambers, but it's unprofessional for one of them to complain?

He didn't actually say that. GM argues (and the reaction suggests this has some force) that it wouldn't do any good really without it being more of a joint effort. GM compares Chief Justice Hughes, who put forth a sort of "unity ticket" message. I guess the rejoinder is that Roberts is speaking as a leader of the Court. Maybe. But, that isn't how many are taking it. Anyway, that is what I take as the message of the post.

==

Just to toss it out there, the Affordable Care Act structured the tax penalty by specifically citing the provisions of the tax code and blocking various non-tax ways of obtaining the money involved. It is a specific line on one's tax forms and when doing taxes this has repeatedly came up for me personally.

And, conservative justices tend to be a "lock" when Republican supported policies come up, all things being equal, since in recent years each party has been careful to pick justices that are ideologically a match. This is at the end of the day too simplistic given the nature of the law in practice but it's still apparent. IT ALWAYS WAS. Marbury v. Madison itself arose out of ideological judicial wars on some level!

# posted by

Joe : 11:11 AM

Okay. Now to the actual comments.

I watched the video (which repeatedly was not provided). Schumer spoke at a rally outside the Court while a matter of particular importance [as seen by many members of Congress of each party joining competing amicus briefs] politically. Such rallies are typical and political officials speaking at them generally speaking is standard too.

What was the "threatening" comment here? Over the years, politicians have strongly spoken about justices, including strongly opposing certain things judges do. Some suggest they are simply illegitimately acting.

To the degree Schumer arguably said something he shouldn't have (a major concern for some is "you aren't helping!" especially when it looked like Roberts might even vote with the liberals this time somehow), it was basically political rhetoric. He -- and his history underlines this -- wasn't physically threatening them or something. And, Schumer's reply to Roberts that he was talking about how it would result in a political reaction to Republicans is quite believable.

Also, compare [SCOTUSBlog summary]:

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” upholding the Louisiana law.

Kavanaugh: During his confirmation hearing, Kavanaugh told Democratic senators that they had “sowed the wind” in an effort to block his confirmation, and “I fear that the whole country will reap the whirlwind.”

The Roberts Court, at least to some degree, has been a strong supporter of free speech. Roberts selectively (do we really want to parse each comment to determine if it is "really worthy" of Roberts responding?) responding to strong political rhetoric like this is dubious to me. It is especially so since there appears to be a clear allusion to something Kavanaugh said! And, some did call Roberts out.

Others, including those who lean Schumer's way politically, didn't want him to say that. Since Democrats not only have agency these days but want to follow norms. So, even though the putative "President" has said a lot more than this, we will have a ton of "whataboutism" and Schumer could have avoided singling out Gorsuch and Kavanaugh in that specific way. It basically furthers the sentiments of some that Schumer is not as good of a politician as the likes of Nancy Pelosi.

# posted by

Joe : 11:24 AM

I think this article covers the bases rather well including providing an extended excerpt w/o necessary agreeing with the whole thing.

https://www.vox.com/2020/3/5/21165479/chuck-schumer-neil-gorsuch-brett-kavanaugh-supreme-court-whirlwind-threat

# posted by

Joe : 11:51 AM

Joe, Kavanaugh also said 'what goes around comes around.' As a potential lifetime judicial appointment his comments were *way* more wrong than that of a politician who was 'riffing' off of his own comments. This is selective outrage, expected from partisan incohrents who cannot/will not apply neutral principles anytime.

# posted by

Mista Whiskas : 11:51 AM

Joe:

Freedom of speech?

Incitement to riot is a crime under the DC municipal code (although Schumer would certainly claim constitutional immunity from arrest) and merely threatening a judge is grounds to disbar Schumer from the NY Bar.

# posted by

Bart DePalma : 12:20 PM

"Incitement to riot"

Lol, Bircher Bart demonstrates yet again how unserious he is.

He'll keep throwing stuff on the wall hoping something sticks, like a dementia patient.

Partisan incoherent.

# posted by

Mista Whiskas : 12:29 PM

Just to note, I mean this in the most serious way. This is Birchers to a T. Bircher Bart has made no attempt to think about incitement law and applying the facts here. He's just repeating and/or leaping to a talking point/partisan incoherent theory here, just like he did in the many cases I described above. He's just not a serious man in any way.

# posted by

Mista Whiskas : 12:31 PM

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# posted by

Bart DePalma : 1:26 PM

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# posted by

Bart DePalma : 1:34 PM

Mr. W:

I know it is useless to educate you, but you are again a useful educational tool

Incitement to riot is a very broad crime which includes any speech which a jury considers to promote or encourage a riot. You do not need to actually cause violence. Yelling "You won't know what hit you if you go forward with these awful decisions" to an angry and cheering crowd can reasonably prove that element.

Colorado’s harassment statute includes a fighting words provision which I deal with several times a year. The police regularly bring far weaker cases than what Schumer offered in that video.

# posted by

Bart DePalma : 1:38 PM

Yes, Mr. W.

As seen, actually consistent people also were in various degrees critical of his comments. On that, I have mixed feelings.

Anyway, Schumer (which I don't recall McConnell ever doing) took back the most blatant aspect of the comment. The article also suggests useful context even if he voiced it badly in some fashion.

This is often the case including when a person personally says something badly but it isn't really as horrible as it might come off if people fairly understand the context.

# posted by

Joe : 1:57 PM

One may read, the official statement of chief justice, here:

https://www.scotusblog.com/wp-content/uploads/2020/03/CJ-Statement-re-Schumer-remarks.pdf

# posted by

el roam : 2:54 PM

Yes.

Note there is a media and press release page on the Supreme Court website.

He didn't post it there.

# posted by

Joe : 3:15 PM

Bart: "an angry mob of demonstrators". Where were the rocks, rotten eggs, tar and feathers, and pitchforks? How many were killed or seriously injured?

Today's left-wing Americans are such sissies. Macaulay, a genuine toff, had seen the real thing and wrote on it - favourably! - in Virginia, on the comeuppance of a patrician rapist at the hands of a plebeian Roman mob:

"One stone hit Appius in the mouth, and one beneath the ear;
And ere he reached Mount Palatine, he swooned with pain and fear.
His cursed head, that he was wont to hold so high with pride,
Now, like a drunken man's, hung down, and swayed from side to side;
And when his stout retainers had brought him to his door,
His face and neck were all one cake of filth and clotted gore.
As Appius Claudius was that day, so may his grandson be!
God send Rome one such other sight, and send me there to see!"

# posted by

James Wimberley : 3:42 PM

It’s a refreshing change to see high-profile Democrats pushing back against GOP hissy-fits and pearl-clutching—and not a week after Trump goes after RBG and Sotomayor, met by deafening silence from Mr. Umpire-in-Chief. Balls and strikes indeed.

# posted by

Joeff : 5:49 PM

BD: "an angry mob of demonstrators".

JW: Where were the rocks, rotten eggs, tar and feathers, and pitchforks? How many were killed or seriously injured? Today's left-wing Americans are such sissies

Socialists come in a variety of flavors, from sissies to the Antifa-style thugs.

Apart from unavoidable stories like the Bernie Bro who shot up a GOP House softball game or Antifa members harassing conservative congress critters in restaurants, Democrat media generally ignores leftist violence. However, conservative socials media and blogs are filled with videos of the various Antifa riots in blue cities, socialist gangs screaming down conservative speakers at universities, and dozens of assaults on everyday people wearing MAGA hats or other Trump paraphernalia.

Militant feminists generally fall closer to the latter category. Go listen to the other speakers to that mob. Civility is not high on their agenda.

# posted by

Bart DePalma : 6:48 PM

"Balls and strikes indeed."

He calls 'em as he sees 'em. He just works for the Astros.

# posted by

Mark Field : 8:50 PM