On March 4, 2020, the Supreme Court heard oral argument in June Medical Services, LLC v. Russo, one of the most contentious cases on its current docket. June Medical is an appeal from a Fifth Circuit decision upholding a Louisiana law requiring physicians who perform abortions to have admitting privileges at nearby hospitals. The Fifth Circuit’s decision appears to directly conflict with the Court’s binding precedent in Whole Women’s Health v. Hellerstedt, in which it struck down a nearly identical Texas law in a 5–3 vote. If the Supreme Court reverses course and affirms the Fifth Circuit in June Medical, Louisiana would be free to use its regulations to force the closure of abortion providers –– and other states would likely follow suit.
Understandably, the case has attracted attention and advocacy, and the Supreme Court plaza was packed with protesters during oral argument. This would hardly be newsworthy –– such protests are common during contentious cases –– if not for a speech Senator Chuck Schumer gave at the rally. Addressing Justices Gorsuch and Kavanaugh by name, Senator Schumer warned them against ruling against abortion rights, saying: “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.”
The comments prompted a rare public statement from Chief Justice Roberts. After providing some context and quoting Senator Schumer, the Chief Justice said: “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 later apologized for his choice of words.
This was only the second time in recent memory that the Chief Justice has issued a statement in response to political criticism. In the first instance, without mentioning the President by name, the Chief Justice defended the independence of the judiciary after President Trump complained of “Obama judge[s].”
Why are such statements from the Chief Justice so rare? And what do we learn from these two statements?
First, Chief Justice Roberts appears committed to preserving the appearance of judicial independence –– hence the statement that there are no “Obama judges or Trump judges, Bush judges or Clinton judges.” Second, the Chief Justice appears willing to address threats from members of the other branches of government, so long as the threats rise above mere “criticism that comes with the territory.” One recent example of a statement that apparently did not meet the threshold for a response: In late February, the President slammed Justices Ginsburg and Sotomayor and demanded that they recuse themselves from cases involving him. The Chief Justice declined to comment.
The Chief Justice’s two goals will sometimes be in tension, particularly when responding to statements that allow for competing interpretations. If we begin with the text of Senator Schumer’s remark (as any good textualist would), we find that the language is not unequivocally threatening. The two objectionable phrases –– “you will pay the price” and “you will not know what hit you” –– are indirect and imprecise. Senator Schumer did not specify the meaning of “price” (he later clarified that he meant “political price”). And “hit” is a weak verb in the absence of specificity (a reputational hit is much different than a physical hit).
Because the statement is amenable to both threatening and non-threatening interpretations, Chief Justice Roberts appeared to pick sides when he adopted the reading used by Republicans to manufacture outrage over the remarks. Senator Schumer’s spokesman seized on the Chief Justice’s response, explaining that it shows “Justice Roberts does not just call balls and strikes.” The response also reminded commentators of a similarly-worded statement Justice Kavanaugh made in his confirmation hearing while lashing out at Democratic Senators: “You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.”
All of this is to say that the best response in this sort of situation may be no response at all. President Trump has explicitly used the courts to advance his agenda, picking judges who will be “reliable policy agents” for the Republican party. As the federal courts grow more conservative, and as the Supreme Court begins to undermine or overturn precedents like Roe v. Wade, we can expect pushback from members of the coequal branches to grow in frequency and intensity. Criticism certainly does come with the territory of being a Supreme Court Justice. As criticisms –– and “threats” –– mount, the Chief Justice will have to decide whether to continue to enter the fray.