(Photo by Aaron P. Bernstein/Getty Images)
Back in early March, which feels like ancient history at this point, Senator Chuck Schumer appeared at a rally for abortion rights and called out the politicization of the Supreme Court. Mainstream media devoted hours to complaining about Schumer’s “inappropriate” comments and showcasing Trump and John Roberts clucking their tongues over Schumer’s gall. And they struck gold when they could point to Larry Tribe echoing the Chief’s concerns, giving the news a proper bipartisan moment to harp on.
Then the entire world collapsed and everyone promptly forgot about it.
Except the National Legal and Policy Center, who kept laser-focused on the truly important issue of Chuck Schumer saying ouchy words about the integrity of the Supreme Court. It filed a complaint with New York’s Attorney Grievance Committee hoping for some redress. Unfortunately for them, the disciplinary authorities looked at the situation and issued a collective “why are you wasting our time?” in the form of a one-paragraph dismissal.
To recap, Schumer said, “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.” There’s some vaguely threatening rhetoric there but in context this was a riff on exactly what Kavanaugh told the United States Senate during his confirmation hearings. One might think that if these words are problematic there’s probably a big ethical problem with a Supreme Court justice using them to describe the legislative branch drafting the laws he’s supposed to interpret, but I digress. Armed with that context, the Grievance Committee offered a tepid nod toward the idea that the comments were “concerning” before ultimately writing the whole thing off as a political dispute, noting that the Republican majority of the Senate could have censured Schumer and even they didn’t think this amounted to anything substantive.
This is where most folks would let this go since this is now beating a horse so dead its glue doesn’t even stick anymore, but the NLPC is still incensed and is appealing. Because they literally can’t find any more egregious ethical lapses in Washington than a Senator complaining about the Supreme Court.
Schumer didn’t suggest that the Supreme Court didn’t have the authority to bind the other branches of government… like some people. Far from prejudicing the administration of justice, Schumer’s complaints presuppose that the Court does wield ultimate judicial authority and that abusing that authority is bad for constitutional order. These comments were so inconsequential that I can’t believe we’re still talking about them at all months after the fact.
But we are because there are some people who have a lot invested in preserving the mythos of the Supreme Court. That’s not the same as preserving the Supreme Court as an institution any more than the Senate’s authority requires the people to swallow the “world’s greatest deliberative body” bromide. Conservatives need the judiciary to be sheltered from political inquiry because otherwise it might undermine the 40-year project to pack it with ideologues.
Even if it means they have to keep pushing this weaksauce ethics complaint like FedSoc Sisyphus.
Earlier: Chuck Schumer Exposes John Roberts With Donald Trump Impersonation
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.