Disrespect for the U.S. Supreme Court: A Dangerous Trend?

This article was prepared exclusively to the New York Analysis of Policy and Government by the distinguished Judge John H. Wilson (ret.)

Supreme Court Justice Ruth Bader Ginsberg, also known as the “Notorious RBG,’ started the war of words in July of 2016, when she made a series of comments about then-Presidential candidate Trump. As reported by CNN, Justice Ginsberg called Donald Trump “a faker…He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns?” However, after Trump called upon Justice Ginsberg to resign, she issued an apology for her statement. “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them…Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”

Fast forward to 2020. In Wolf v. Cook County, the US Supreme Court granted a stay to the Department of Homeland Security from an order of the Seventh Circuit, which had prevented the US government from implementing a change in the “Public Charge” clause in US immigration law – that is, keeping out immigrants who may become a financial burden on the government. In her dissent, Justice Sonia Sotomayor criticized her fellow justices for being “all too quick to grant the Government’s ‘reflexive’ requests’’ for stays of lower court injunctions. In doing so, she accused the other members of the Supreme Court of benefitting “one litigant (the government) over all others.”

Never one to miss an opportunity, or forget a slight, President Trump called upon both Justices Sotomayor and Ginsberg to recuse themselves from any cases involving both the President and his administration. Mother Jones immediately called Trump’s statement part of “his ongoing attacks and attempts to influence the Justice Department and intelligence agencies after the Senate’s impeachment acquittal,” while the blog Above the Law hysterically stated “of course Trump would just love it if a pair of powerful, outspoken women got out of his way.”

While the President may be faulted for his own comments regarding Justices Ginsberg and Sotomayor, for sheer, jaw-dropping nerve, nothing much can beat the recent comments made by US Senator Chuck Schumer (D-NY). At a Pro-Abortion rally in Washington DC, Senator Schumer made overtly threatening remarks addressed to two members of the US Supreme Court regarding their votes in abortion regulation cases – “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.”

These comments earned Senator Schumer a rare rebuke from Chief Justice Roberts, who issued this statement; “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.”

As reported by Fox News, “Schumer spokesman Justin Goodman quickly responded by accusing Roberts of bias, further escalating the confrontation. Goodman insisted that Schumer was addressing Republican lawmakers when he said a “price” would be paid — even though Schumer had explicitly named Kavanaugh and Gorsuch.”

Many bad things can be said about Senator Schumer, but stupid is not one of them. Realizing that no one was buying his spokesman’s claim, the Senator walked his comments back in remarks on the Senate floor. “I should not have used the words I used yesterday. They did not come out the way I intended to…I’m from Brooklyn. We use strong language.”

If nothing else, let us take both of these as examples of how public officials should NOT talk about judges who are in the process of hearing cases.

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President Trump knows that he and his administration have a variety of cases which will be heard by the US Supreme Court in the coming months, including whether the Census can include questions regarding the citizenship of respondents to the census questionnaire, and “whether the government is required to provide notice and allow a commenting period before changing its payment system” to healthcare providers.

In the President’s defense, his comments were unlikely to either sway, influence or affect either Justices Sotomayor or Ginsberg, or cause either to recuse themselves. Both are firmly entrenched members of a minority of judges who typically do not rule in favor of the Administration and the policies President Trump supports. Nonetheless, it is improper for the President, or anyone else, to try and influence the court and its judges in any way.

At the same time, it is downright dangerous for any elected official to use threatening and inflammatory language regarding individual Supreme Court justices, and it would not be unreasonable for Justices Gorsuch and Kavanaugh to feel threatened by Senator Schumer’s comments. Thus, the Senator was right to recognize the error of his words, and to issue an apology (such as it was).

“Judicial independence functions to set out and also protect political rights, civil liberties and also the rule of law… judges must be free to interpret the laws independently, impartially and objectively without (being) subject to any undue outside pressure from the police, the government, the military, public opinion, or any other interested body or person in order for justice to be performed.”

All sides would do well to remember these principles, and refrain from attempting to influence the Supreme Court and its justices.

Photo: Senator Schumer (official Senate photo)

Quick Analysis

Putin’s Saber Rattling

Earlier this week, President Biden reversed his 2022 decision, authorizing the provision of antipersonnel land mines to the Ukrainian government. It follows an earlier Administration authorization to allow the use of an advanced American missile system capable of striking as deep as 100 miles inside Russian territory. The US election season may be ending, but both Russia and the West show no indication of stepping down the conflict. Russian propaganda continues to swell as the Kremlin increases its threats to use nuclear weapons against the West. Last week Andrey Sushentsov, program director of the pro-Kremlin think tank Valdai Discussion Club (VDC), published an article on growing nuclear tensions in the region. Official Russian language in the last few years has been threatening. Since the US election, rhetoric like that in the Sushentsov article, has approached the level of nuclear blackmail. The VDC article’s main theme centers on Russia’s intent to directly confront the West militarily if the North Atlantic Treaty Organization (NATO) becomes involved in Russia’s conflict with Ukraine. “On the one hand, these threats are intended to frighten the West, but on the other, Russian propagandists themselves are starting to believe in the inevitability of escalation,” according to Ksenia Kirillova of the Jamestown Foundation. On November 11, Sushentsov wrote that “The conflict will reach a completely new level, with unpredictable consequences for Europe and the entire world.” Kirillova points out that Putin’s distorted image of the world is divorced from reality and is causing the Kremlin to issue demands that are impossible to fulfill. Financial and other Russian resources needed to support Putin’s war are growing scarcer at the same time. This week the Kremlin announced a reduction of payments to its soldiers. Recently North Korea acknowledged it was sending soldiers to fight in Ukraine as Putin is running out of bodies to use as cannon fire. The war is not going well for Russia. One question floating around the Washington intelligence community is whether Putin will act out of desperation before President-elect Trump assumes office. In recent months the Russian propaganda machine is spewing out materials from fairly reputable analytical platforms inside the country. Kirillova says that “Kremlin ‘experts’ do not conceal that such threats are only intended to break the West psychologically, as they themselves are not prepared for full-scale nuclear war.” Despite Russia’s lack of preparation for an all-out war with the West, the expanding nuclear rhetoric carries with it an increase in the threat of a full-scale war in multiple theaters of operation. In June 2023 a founder of the Russian Council on Foreign and Defense Policy, Sergey Karaganov, called for “delivering a pre-emptive strike of retaliation” on Poland to force the West to surrender. In the previous month, Dmitry Suslov, a direct of research programs at the policy center proposed organizing “a demonstration nuclear explosion” aimed at intimidating the West. In September, President Putin announced a reappraisal of Russian nuclear doctrine after speaking earlier in the year at the plenary session of the St. Petersburg International Economic Forum and jokingly calling Suslov a “scary person.” Pavel Baev, writing in the European Daily Monitor, says “Putin intends his announcement to mark an escalation of nuclear brinkmanship and influence the proceedings of future Ukrainian peace efforts.” Putin is expanding the list of environmental conditions that are acceptable for using a nuclear weapon and incorporating it into Russian military doctrine. Baev adds that “The ups and downs of Russian brinkmanship are disconnected from the kinetic battles of the war, correlating instead with Ukrainian peace offensives, such as Ukrainian President Volodymyr Zelenskyy’s first peace summit in Bürgenstock, Switzerland.” Despite the increase in vitriolic language, in a You Tube video published a week before the US presidential election, Karaganov openly assured the West the primary goal of the escalation is to break the American spirit and that of the West, not outright nuclear war. By Election Day in the US, with political prognosticators predicting a win for former president Trump, Karaganov changed his tune and called for an increased role in nuclear deterrence. Kirillova points out that Western concessions to Russia are unlikely to reduce the risk of nuclear escalation. The distorted reality inside the Kremlin continues to push that President-elect Trump is an adherent of “world government,” that Ukraine will create a nuclear weapon, and Russia must prepare for a nuclear conflagration to achieve its ambitions for a new world order. President-elect Trump has indicated he will not agree to concessions that destabilize Europe, the Middle East or other regions. Going forward a strong US foreign policy may be the most stabilizing course the West can count on to restrain Putin and his intent to rebuild the Russian empire. Daria Novak served in the U.S. State Dept. Illustration: Pixabay

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