Garrett Epps: Trump is at war with the whole idea of an independent judiciary
Let’s consider all the ways that Schumer has, by popping off on this occasion, taken the current political situation—already nearly catastrophic—and made it worse. First, as a general matter, threatening judges—even seeming to threaten judges—is a dreadful thing to do, no matter whether it’s done by Donald Trump, Roger Stone, or Chuck Schumer. As the United States struggles to retain the last shreds of the rule of law, the way to respond to Trump’s threats is not—repeat, is not—to deploy threatening language from the other side.
Second, the threat itself was, as we used to say where I grew up, kind of pitiful. He sounds like the deposed, disarmed King Lear, vowing to his ungrateful daughters that “I will have such revenges on you both that all the world shall—I will do such things—what they are yet I know not, but they shall be the terrors of the earth.” If Schumer had any power over the world these two jurists live in, they wouldn’t be on the Court at all. Mitch McConnell and Donald Trump contemptuously brushed aside Schumer’s opposition to both appointments, and didn’t suffer for it politically. Now that Neil Gorsuch and Brett Kavanaugh are installed with life tenure, does Schumer expect them to quake at his displeasure? Such a threat is not thuggery; it is impotence posing as thuggery, not only improper, but embarrassing.
Third, Schumer’s remarks have now allowed Trump himself to pose as the defender of judicial independence. His campaign and presidency have been a sustained and devastatingly effective assault on the very notion of law, courts, and judges being anything but the instruments of his will. Just last week he was demanding that two justices of the court recuse themselves, because one of them had questioned the litigation tactics of the Office of the Solicitor General. Now, thanks to Schumer, he has tweeted the following hypocritical piety: “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!”
Read: John Roberts’s biggest test is yet to come
Trump’s acolytes, such as Representative Steve Scalise and Senator Ben Sasse, are also now able to pose as supporters of independent judges. Any attempt at the correct narrative—that the courts are being taken over by an authoritarian regime—can now be dismissed with a sarcastic reference to Schumer. Schumer stepped blithely into the mother of all false equivalencies, and it is going to be impossible to walk that back.
Consider the response Schumer’s remarks elicited from Chief Justice John Roberts:
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.
Roberts has many shortcomings, but he has tried to prevent Trump from spreading his characteristic ordure on the Supreme Court. He issued an unprecedented rebuke to the president, without naming him, last year after Trump called a federal district judge who had displeased him an “Obama judge.” Roberts reiterated his implied rebuke in his year-end state of the judiciary report, where he likened attacks on the court to the mob violence that had temporarily disabled John Jay, one of the authors of The Federalist Papers.