Roberts Calls Schumer Threats Against Justices 'Dangerous'

Top Senate Dem warned justices they would 'pay the price' if they limit abortion access

Chuck Schumer and John Roberts / Getty Images
March 4, 2020

Chief Justice John Roberts condemned Senate Minority Leader Chuck Schumer (D., N.Y.) as "dangerous" after the New York Democrat made threatening statements as justices heard oral arguments in a controversial abortion case on Wednesday.

Congressional Democrats took a hostile tack toward the Court's Trump appointees, Justices Neil Gorsuch and Brett Kavanaugh. Senate Minority Leader Chuck Schumer addressed pro-abortion demonstrators rallying in front of the Supreme Court Wednesday morning and promised the pair would "pay the price" if they voted to restrict abortion access. Chief Justice Roberts called such rhetoric "dangerous" in a statement released Wednesday afternoon.

"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," Roberts said. "All Members of the Court will continue to do their job, without fear or favor, from whatever quarter."

The top Senate Democrat defended his remarks in a statement released by his office. Despite mentioning Gorsuch and Kavanaugh by name, a spokesman for Schumer said his threats were directed at Senate Republicans and criticized Roberts for his "deliberate misinterpretation" of what was said.

"Sen. Schumer's comments were a reference to the political price Senate Republicans will pay for putting these justices on the court and a warning that the justices will unleash a major grassroots movement on the issue of reproductive rights against the decision," Schumer spokesman Justin Goodman said in a statement.

"For Justice Roberts to follow the right wing's deliberate misinterpretation of what Sen. Schumer said, while remaining silent when President Trump attacked Justices Sotomayor and Ginsberg [sic] last week, shows Justice Roberts does not just call balls and strikes," Goodman said.

Roberts appears to hold the deciding vote in the abortion case that could change the legal landscape for pro-life reforms and signal how the High Court's newly entrenched conservative majority will approach the deeply divisive issue. Soon after Schumer stood on the Court steps and declared, "You won't know what hit you if you go forward with these awful decisions," the justices listened to oral arguments about a Louisiana law that would require abortion providers to obtain admitting privileges at nearby hospitals. The dispute presents revealing questions about abortion and the force of precedent.

The Supreme Court struck down a similar Texas regulation in a 2016 case, Whole Woman's Health v. Hellerstedt. Lawyers for Louisiana abortion clinics argue that the law is an anti-abortion measure masquerading as a public-health rule. If the law is allowed to go into effect, abortion advocates say two of Louisiana's three clinics will be forced to close.

Wednesday's case forces two high-stakes questions on the chief justice: how he will approach abortion cases and what force, if any, the Court's abortion precedents will have going forward. Both questions are difficult for the chief justice. Though he has never voted to strike down an abortion restriction, he prefers a plodding, incrementalist approach to jurisprudential changes. However he ultimately comes down, Roberts will bear full responsibility for the consequences, as he is likely to cast both the decisive vote and assign the majority opinion.

The Court in Whole Woman's Health said the Texas law imposed an undue burden on abortion access because it imposed significant costs without meaningful benefits. Roberts wondered Wednesday if that approach could lead to different results in different states, depending on the availability of doctors and varying standards for securing admitting privileges. While that line of questioning appeared promising for Louisiana lawmakers, the chief justice later said that benefits would never vary by state. The Court in Whole Woman's Health found the admitting-privileges law did not create real benefits. All told, it was not clear how Roberts will vote when Wednesday's proceedings ended.

Kavanaugh focused on a narrow, fact-specific approach. He seemed open to arguments that the admitting-privileges requirement could be constitutional in some circumstances, depending on the situation on the ground.

"Suppose a state had 10 clinics and 2 doctors for each clinic, but all doctors could easily get the admitting privileges," Kavanaugh said to Julie Rikelman, a lawyer for the clinics. "Would a law be constitutional in that state?"

Louisiana argues its law promotes physician competency and rectifies compliance problems common to abortion clinics in the state. One abortion doctor's medical license was suspended in 2019 for repeatedly allowing unlicensed personnel to provide care and evaluate patients, state lawyers noted in legal briefs. Another had certain surgical privileges revoked in 2007 for failing to follow professional standards. The same practitioner repeatedly failed to disclose that penalty when he renewed his medical license.

In other instances, the clinics hired nonspecialists to perform abortions. The medical director at one of the clinics challenging Act 620 admitted to hiring a radiologist and an ophthalmologist to perform abortions at an earlier phase of the dispute.

In the 2016 Texas case, the Supreme Court ruled that admitting-privileges requirements do not "serve any relevant credentialing function" since physicians are regularly denied admitting privileges for reasons unrelated to competence.

Justice Ruth Bader Ginsburg, whose vigorous questioning dominated the proceedings, noted the incidence of abortion-related complications is extremely low. First trimester abortions, she said, are much safer than childbirth. Justice Elena Kagan put a finer point on that issue, noting one of Louisiana's clinics has transferred just four women to hospitals for emergency care over the past 20 years.

Louisiana solicitor general Elizabeth Murrill told Ginsburg and Kagan that patients do not necessarily communicate all post-abortion complications to clinics. As such, the providers' self-reported statistics on the number of complications are not comprehensive, she argued.

Murrill also accused abortion doctors in the state of not making good-faith efforts to obtain admitting privileges, implying that they purposefully avoided the requirements in order to bolster their legal challenge. She noted, for example, that one physician applied for privileges at just one of nine qualifying hospitals. Another did not reapply for privileges at a Catholic hospital where he once had them.

"Louisiana's decision to require abortion providers to have admitting privileges was justified by abundant evidence," Murrill told the justices.

Apart from the dispute over admitting privileges, Louisiana argues the clinics do not have the standing to challenge Act 620. The clinics brought the challenge on behalf of patients allegedly harmed by the law. The state counters that there is a conflict between the clinics' interests and those of patients.

A decision finding that the clinics lack standing to challenge the law would have sweeping implications since it could foreclose future legal challenges to pro-life reforms or other regulations that affect abortion.

Justice Samuel Alito was particularly animated on the standing issue, repeatedly calling Rikelman's standing arguments "amazing." Roberts and Kavanaugh, however, did not touch on the issue at Wednesday's hearing.

The Trump administration supported Louisiana before the Court. Deputy solicitor general Jeff Wall told the justices Rikelman, not the state, broke with precedent by arguing that admitting-privileges rules are never permissible. He also said the providers should have waited for Act 620 to take effect before bringing their lawsuit, rather than challenging it preemptively.

A decision in the case, No. 18-1323 June Medical Services v. Russo, is expected by June.