By An Old Friend

Schumer, the

Supreme Court,

and the Mob

By Andrew C. McCarthy
National Review
March 5, 2020 2:39 p.m.

On Wednesday morning, the Democrats’ Senate minority leader stirred up the mob outside the Supreme Court, unabashedly threatening Justices Neil Gorsuch and Brett Kavanaugh: “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price,” Schumer inveighed. “You won’t know what hit you if you go forward with these awful decisions.”

Inside, the justices were then hearing argument on what ought to be a straightforward abortion case (i.e., one in which the “right” invented in Roe v. Wade is not up for consideration). When called on his menacing remarks, rather than apologize, Schumer brazenly lied about what he had done. This morning, he was still lying — a tepid apology, offered under pressure while insisting that “in no way was I making a threat.”

In a rule-of-law society, that should rate censure. Case closed.

Except it’s not closed, because we are not a rule-of-law society. We just pretend to be. In a rule-of-law society, a mob would not gather on the steps of the courthouse in the first place.

Because nearly a half-century ago, the Supreme Court took on the mantle of super-legislature, weaving from whole cloth a right to terminate the lives of unborn children. In terms of constitutional interpretation and the judiciary’s place in our system, Roe was so indefensible that it took less than 20 years — the blink of a jurisprudential eye — for its farcical underpinnings to vanish. (In point of fact, Planned Parenthood v. Casey, not Roe, has been what passes for the law of abortion for almost 30 years.)

With Roe, the High Court decisively transformed itself into a political institution. The worst kind of political institution, in fact: One that pretends to be something quite different — an apolitical arbiter of what the law says, an oracle of justice shorn of passion. One that is politically unaccountable to the people whose lives it deeply affects — and affects not as a court deciding the private disputes of litigants, but as a ruler imposing national policy on a heretofore self-determining republic.

The mob is in front of the courthouse because we are inured to the unspoken reality that the Court is innately political. Political entities can be moved by mobs, such as the one that gleefully cheered Senator Schumer on.

There is no mob outside a medical lab. When specimens are submitted, the techs do their tests, and the patients either have whatever condition is suspected or they don’t. No one, however, believes any longer that jurists work with such professional detachment and rigor. No one believes they check their political, ideological, and emotional baggage at the door, applying law to facts without fear or favor.

[N.S.: Actually, with the rise of militant homosexualism, there were mobs outside of the medical labs, so to speak, circa 1990.]

When President Obama nominated Judge Sonia Sotomayor to the Court, it was not for her legal acumen. The salient argument made in her favor, as if there were nothing remarkable about advocating such an attribute as a credential, was that she is a model of “empathy” — a “wise Latina” who would bring a “perspective” outside the ken of your average staid old white guy.

There is, of course, a very appropriate place in our system for a person of such gifts. Justice Sotomayor would make a superb congresswoman. That I wouldn’t agree with her about most things is beside the point. In a pluralistic society, the legislature is where we want our diverse interests effectively represented. That’s the place where majorities must be persuaded to empathize with other interests if we are to have domestic tranquility.

But that is not what a court is for.

A court is for telling us what the law is, as opposed to what the judges wish it were, or think it had better be if the mob is to be appeased. If a court does its job properly, and the people and their representatives do not like the result, they can try to change the law democratically. No one would blame the judges. They are supposed to be the messengers, not the lawgivers.

That is the system we were bequeathed. It is no longer the system we have.

The Court is a political institution. And Senator Schumer is simply conducting politics the way the Left does politics. It is what the Alinskyites call “direct action.” You pretend that you’re all about the rule of law — in fact, that you are the very embodiment of the rule of law — until the second the law does not go your way. Then you claim the system is rigged, corrupt, racist, and so on. Then you call in the mob.

The Left does what Senator Schumer did on Wednesday because it works.

No, better for you to be told the lie that Gorsuch and Kavanaugh are scheming to consign women to back-alley quacks, and that Schumer had no choice but to call out the pitchforks. When you’re pressuring a political institution, a little extortion can go a long way.

Censure? Perish the thought. The demagogues are already telling us he’s just passionate about women’s health issues (the health of Justices Gorsuch and Kavanaugh is obviously not a concern). The Democrats will close ranks behind him — and use the publicity to raise money based on Schumer’s heroic activism in protecting “choice.” The left-leaning legacy media will look the other way — there’s no reason you need to know that the case at issue is not actually about the enduring legality of abortion, but rather about whether abortionists should have admitting privileges at local hospitals (which actually is a women’s health issue), and whether abortion providers — rather than women purportedly harmed by such a requirement — have standing to sue.