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The controversy over Chuck Schumer’s attack on Gorsuch and Kavanaugh, explained

Sen. Chuck Schumer’s Supreme Court tirade is a symptom of America’s democratic decline.

Senate Minority Leader Sen. Chuck Schumer speaking at an abortion rights rally outside of the Supreme Court on March 4, 2020.
Sarah Silbiger/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Wednesday morning, as the Supreme Court heard arguments in a major abortion case, Senate Minority Leader Chuck Schumer spoke at an abortion rights rally outside the Court. One line of his remarks swiftly generated outrage among conservatives and received a rare public rebuke from Chief Justice John Roberts.

I’m going to quote that line briefly, then I’m going to quote it again in context below, because the full context does suggest that Roberts may have misinterpreted Schumer’s remarks somewhat, even if it does not render the statement innocuous. However you interpret Schumer’s statement, it is a reflection of a much deeper rot within American democracy.

The Schumer quote that triggered Roberts’s reply is this: “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.”

“Gorsuch” and “Kavanaugh,” of course, refer to Justices Neil Gorsuch and Brett Kavanaugh — President Trump’s two appointees to the Supreme Court, whose confirmations were opposed by nearly all Senate Democrats.

The conservative blowback against Schumer was swift and intense. The National Review’s John Hirschauer labeled Schumer a “thug.” Senate Majority Leader Mitch McConnell said Schumer’s remarks were, at best, “astonishing, reckless and completely irresponsible.” President Trump weighed in in his distinctly Trumpy way.

By the end of Wednesday, even nonpartisan leaders such as American Bar Association president Judy Perry Martinez joined the pile-on with a statement saying that the ABA is “deeply troubled” by Schumer’s remarks.

Roberts, for his part, interpreted this statement as a direct threat against Justices Neil Gorsuch and Brett Kavanaugh, and it’s easy to see why. “Justices know that criticism comes with the territory,” the chief justice said in his statement rebuking Schumer. “But threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”

On Thursday, Schumer walked back his original remarks somewhat in a statement on the Senate floor. “I should not have used the words I used yesterday,” he said, adding that, “they did not come out the way I intended to.”

He says that his intention was to convey that “there would be political consequences—political consequences, for President Trump and Senate Republicans—if the Supreme Court, with newly confirmed Justices, stripped away a woman’s right to choose.”

That is, indeed, a more charitable way to read Schumer’s original statement than the interpretation shared by Roberts and many others. But even that charitable reading is grim — it suggests that one of the Democratic Party’s most important leaders has given up on the idea that Republican justices are distinct from other Republican politicians. He sees those justices as acting in league with their fellow Republicans.

Regardless of the intent, the harsh language the senator did use is likely to escalate a process that is swiftly dismantling democratic norms within the United States.

What Schumer said, and why he said it

Schumer’s remarks came during a rally in front of the Court on the day it was hearing one of the most anticipated cases of the session: June Medical Services v. Russo, which could potentially dismantle the constitutional right to an abortion.

Here’s a fuller excerpt of what Schumer actually said:

Now we stand here today because behind me, inside the walls of this Court, the Supreme Court is hearing arguments, as you know, for the first major abortion rights cases since Justice Kavanaugh and Justice Gorsuch came to the bench. ...

From Louisiana, to Missouri, to Texas — Republican legislatures are waging war on women — all women. And they’re taking away fundamental rights. 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.

The bottom line is very simple: we will stand with the American people. We will stand with American women. We will tell President Trump and Senate Republicans who have stacked the court with right-wing ideologues, that you’re gonna be gone in November and you will never be able to do what you’re trying to do now, ever, ever again. You hear that over there on the far-right? You’re gone in November.

The full picture Schumer paints here is one of Republican coordination. Republican state lawmakers enact anti-abortion laws. A Republican president and Republican senators fill the bench with Republican judges and Republican justices. And then those Republican justices play their part in this larger machine by upholding the anti-abortion laws.

Read in this way, the “price” Gorsuch and Kavanaugh will pay could be that they will see their party driven from power and many of the cogs of their partisan machine broken. But Schumer isn’t just a United States senator — he is one of the leaders of his party. If he intended to say that Gorsuch and Kavanaugh will regret the fact that their actions will hurt the Republican Party, he should have said that much more clearly.

But even if we accept the most charitable reading of Schumer’s remarks, most of the implications of that reading are the same as the harsher interpretation Roberts gave to Schumer’s statement. It’s the statement of a political leader who believes that the judiciary places partisan politics ahead of the law, and that one of the most powerful institutions in the country is rigged against him and his fellow Democrats.

Consider the past four years from Democrats’ perspective. Almost exactly four years ago, Justice Antonin Scalia died. The incumbent Democratic president at the time, Barack Obama, won two national elections — winning a majority of the popular vote each time. Meanwhile, while Republicans controlled the Senate in 2016, they did sole solely due to Senate malapportionment. The 46 senators in the Democratic caucus represented nearly 20 million more people than the 54-senator Republican “majority.”

And yet, Republicans refused to give Judge Merrick Garland, Obama’s nominee to fill the vacancy left by Scalia’s death, a confirmation hearing or a vote. Senate Republicans held that vacancy open for a year, until President Trump — a man who lost the popular vote by nearly 3 million ballots — could fill it.

Only two people in American history have been nominated to the Supreme Court by a president who lost the popular vote, then confirmed by a bloc of senators who represent less than half of the country. The first is Neil Gorsuch. The second is Brett Kavanaugh. And the latter of these two men was confirmed even though he was credibly accused of sexually assaulting Christine Blasey Ford.

Indeed, tucked into Schumer’s largely inarticulate threat against Gorsuch and Kavanaugh is a subtle dig at the latter man. Just as Schumer said that Gorsuch and Kavanaugh “released the whirlwind,” Kavanaugh, during an angry moment where it seemed that his chance of sitting on the Supreme Court was slipping away from him, told Senate Democrats that they have “sowed the wind” and that “the country will reap the whirlwind.”

So Schumer most likely believes that the judiciary is rigged against Democrats because the judiciary is rigged against Democrats. And that entirely understandable perception is a poison that threatens the heart of American democracy.

The authoritarian death spiral

What’s truly troubling about Schumer’s statement is that it is a symptom of a deeper rot in American democracy.

Democratic governments, Harvard government professors Steven Levitsky and Daniel Ziblatt write in How Democracies Die, depend as much on informal norms as they do upon constitutional rules. There is no law requiring the party that controls the Senate to give a confirmation hearing to a Supreme Court nominee of the other party.

Nor is there any meaningful check on how Supreme Court justices read the Constitution — American history is riddled with implausibly reasoned Supreme Court decisions blessing racism, oppressive treatment of workers, and voter suppression. When the Supreme Court’s avoided such exercises of raw power, that’s typically because the Court has restrained itself.

There also isn’t any law prohibiting United States senators from making vaguely menacing statements about Supreme Court justices.

Yet when the leaders of one party violate informal norms — such as the norms providing that Supreme Court nominees receive a hearing or that senators should not threaten justices — they risk setting off a “death spiral” where each party uses the other party’s norm violations to justify future violations, until the entire system slides into authoritarianism.

Levitsky and Ziblatt identify two norms in particular as “fundamental to a functioning democracy: mutual toleration and institutional forbearance.”

Forbearance “can be thought of as avoiding actions that, while respecting the letter of the law, obviously violate its spirit.” It’s what leads a political party to follow the ordinary process for confirming a Supreme Court nominee, even when that nominee belongs to the opposite party. It’s what once led senators to use the filibuster sparingly, even though the filibuster could be used to grind the Senate to a halt.

Mutual toleration, meanwhile, is the idea that political rivals generally “have an equal right to exist, compete for power, and govern.” It’s a shared understanding that elections should be free and fair, that parties should play by the rules during elections, and that the losing party should accept its loss gracefully — comfortable in the knowledge that the winning party will allow it to compete freely and fairly during the next election.

Without it, every election becomes a moment of existential peril, because a losing party fears that its loss could be permanent. Moreover, Levitsky and Ziblatt write, “if we view our rivals as a dangerous threat, we have much to fear if they are elected. We may decide to employ any means necessary to defeat them — and therein lies a justification for authoritarian measures.”

The norms of forbearance and toleration frequently interlock. If one party abandons forbearance — say by suppressing the votes of its opponent’s supporters or refusing to confirm its opponent’s judicial nominees — then the opponent is more likely to view that party as an existential threat. Forbearance isn’t simply a virtue in its own right, it encourages mutual toleration.

And that brings us back to Sen. Schumer’s remarks.

Read in a less charitable light, Schumer’s statement is itself a massive norm violation — he threatened two high-ranking members of the judiciary. That statement will make a Democratic victory appear more threatening to Republicans, and send us deeper into a death spiral where Republicans are likely to violate norms in order to hold on to power.

But even if Schumer did intend to just make the banal point that Gorsuch and Kavanaugh will be sad if their party loses an election, the fact remains that Republicans perceive Schumer’s statement as a big violation of an important norm. Indeed, the two most powerful Republicans in the country — Roberts and President Trump — both condemned Schumer for his remarks. Trump tweeted that Schumer “must pay a severe price for this!

It does not matter, in other words, whether Schumer spoke with innocent intent.

And, on top of all of this, Schumer’s statement suggests that he does not view Gorsuch and Kavanaugh as legitimate. It’s exactly the sort of statement that a political leader makes to justify future norm violations that, once again, will push the United States deeper down the death spiral.

Nor is it clear that we can keep from riding this spiral to the bottom. In an interview with Ziblatt, Vox’s Sean Illing explains why even liberal democratic parties often view norm violations as an act of self-defense — “if one side decides to ignore the rules for the sake of power, the other side has no choice but to capitulate or respond in kind.”

Worse, when Illing asked Ziblatt whether he could “think of historical examples of democracies drifting into this illiberal territory and then bouncing back before it was too late to undo the damage to liberal institutions,” Ziblatt responded with a rather bracing “no.”

Democrats are in a real conundrum. On the one hand, many of the Democratic Party’s problems — and American democracy’s problems — stems from the fact that our system is not particularly democratic. If Democrats insist on clinging to all established norms, they entrench a system that locks a majority of voters out of power. On the other hand, departing from norms will only accelerate our death spiral.

Yet while Democrats could be justified in breaking down some norms that undercut democracy (like, say, the filibuster), Schumer’s statement achieves no policy goal. It neither makes our government less dysfunctional, nor is it likely to inspire Gorsuch or Kavanaugh to behave less ideologically. It’s an unforced error that invites a reprisal without benefiting anyone.

Chief Justice Roberts is right that Schumer’s comments are the sort of remarks that have no place in a healthy democracy. But the United States is not a healthy democracy. Until that problem is fixed, the continuing erosion of democratic norms is inevitable.

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