This is typical Leftism: Attack anyone you disagree with. Revolution is its endpoint. Over the many years that the court was Left-leaning, Leftists were quite approving of it and conservatives were critical of its creative approach to the law. But a torrent of outright verbal attack on the court was unknown in those days
Chief Justice Roberts’s “Year-End Report on the Federal Judiciary,” evoking memories of a federal judge “physically threatened for following the law” in 1957, is a dispatch from a Supreme Court under siege. After a year of stakeouts and protests, he thanks members of Congress “who are attending to judicial security needs.” He notes a recent law that helps “protect judges and their families,” a nod by the Article III branch to its Article I paymasters.
The thing that gets us is that the threats to the court are so often coming from lawmakers themselves. The chief justice is too polite to say this directly. Yet it has been horrifying editorial writers the way, say, Senator Whitehouse has been trying to palm off on Americans the idea that the court is controlled by dark money. He accuses conservatives of using money to “accomplish things that they tried and failed to accomplish” via regular means.
The Chief Justice is right to emphasize the “importance of rule by law instead of by mob.” This involves, in our view, not only the jurists’ physical safety, but respect for its constitutional authority after a year in which Democrats have begun portraying the court as an evil institution and a runaway bench. It is why the Chief Justice feels impelled to say that a “judicial system cannot and should not live in fear.”
After oral arguments over abortion at the court, Senator Schumer thundered “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.” At the time, that prompted a rebuke from the chief justice, who labeled “threatening statements of this sort from the highest levels of government” as “dangerous.”
Mr. Schumer’s fellow New York lawmaker, Alexandra Ocasio-Cortez, opted for an attack of greater sophistication. In a summertime tweet, she called for “court expansion” — packing the bench to dilute its conservative complement — and limits to judicial review, meaning congressional action to curtail the scope of the high court’s appellate review. The call for stacking justice was seconded by Senator Markey of Massachusetts.
Democrats in office were joined by the court’s adversaries in the press that has been using opinion pages to undercut the court. Law professors Joseph Fishkin and William Forbath suggested in the Times that “liberal lawmakers should view the court primarily as a hostile political actor.” They claim that the court as constitutional arbiter “appears increasingly ridiculous” and describe the high court as a “maddening institution.”
Also taking aim at the court from the pages of the Grey Lady is a professor at Yale Law School, Samuel Moyn, who seeks to “reclaim America from constitutionalism.” This rescue operation will, Mr. Moyn argues, jettison any notion of a “higher law that is more difficult to change than the rest of the legal order.” That is necessary because the Constitution is “broken.” The “problem,” he contends, is “the Constitution.”
No wonder Americans are starting to act out against the court. The threats to the Supreme Court are not confined to the Founders’ designs. A man, skulking outside Justice Brett Kavanaugh’s home, was arrested for intending his assassination. A judge’s son was murdered at his front door in what was intended to be an attack on his mother, a federal district judge, Esther Salas. The killer had lost a case in her courtroom.
Chief Justice Roberts summons in his report the spirit of Brown v. Board of Education and the efforts to implement the court’s holding that schools, North and South, be integrated. This required both judicial determination and rigorous law enforcement. And humble reflection by millions of Americans. How rare such reflection seems during these days, when the left seems to have forgotten America’s charter and disdains its robed sages.
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