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

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.