What could explain the mind-bogglingly ill-tempered attack by Sen. Chuck Schumer, D-N.Y., on two United States Supreme Court Justices?
At a pro-abortion rights rally held outside the United States Supreme Court on March 4, Schumer exclaimed, "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."
The angry Schumer claimed actually to be criticizing the Republican state legislatures which had passed restrictions on the operation of abortion clinics, restrictions designed to ensure that the doctors in those clinics were able to safeguard women’s health, but for Schumer and abortion proponents any restrictions on a purported constitutional right to an abortion are anathema.
Schumer and his defenders quickly sought to deny that he was making physical threats to the two Trump-appointed Justices, but the dripping disrespect with which Schumer omitted their titles, and his declaring that they "would pay the price," and "won’t know what hit you" were the actions of a bellicose bully — not a serious solon.
Why the outburst?
Schumer understands that the Supreme Court actually has a chance this term to correct some very serious errors of constitutional law, and if it does, Schumer and the progressives will not be pleased.
If the high court decides to reverse course, and return to faithfulness to the Constitution’s original understanding, as it should, then President Trump, by appointing Justices Neil Gorsuch and Brett Kavanaugh, will have vindicated those of us who supported candidate Trump because of his promise to appoint judges who would apply the law rather than make it up to suit their policy preferences.
This Supreme Court term has offered the justices at least two opportunities dramatically to signal a return to sensible constitutional interpretation and to correct errors of the past.
One of those cases is a challenge to The Patient Protection and Affordable Care Act (ACA/Obamacare), and the other — the one to which Schumer referred — offers the court an opportunity to clarify or even reverse its abortion jurisprudence.
Roe v. Wade, 410 U.S. 113 (1973), the case which held that there was a constitutionally protected right to terminate a pregnancy, was the Court’s most blatant act of judicial legislation. This is because the Constitution actually says nothing about the issue, and our traditional understanding was that such issues of family law were for the states, not for the federal government.
The tendency to seek to solve our political problems at the federal level, however, became irresistible during the New Deal, and by the 1970s, the 10th Amendment, which provides this country with a central government supposedly limited to its expressly granted powers, had seriously eroded.
That Amendment was also involved in the original Obamacare case, NFIB v. Sebelius, 567 U.S. 519 (2012), when five Justices agreed that because the federal government was Constitutionally limited, its power to regulate commerce did not allow it to force Americans to buy products, such as health insurance.
Nevertheless, Chief Justice Roberts, in an act of unprecedented judicial legerdemain, ruled that the federal government’s taxing power allowed it to impose a tax on Americans who declined to buy health insurance, thus saving Obamacare.
That "tax," the so-called "individual mandate," a hated provision, was later repealed by Congress, though much of the rest of Obamacare remained. The constitutional basis for supporting the legislation is now in doubt, however, and a lower federal court has ruled that the legislation is now invalid.
The Supreme Court has a chance now to begin to restore the Tenth Amendment by ruling that Obamacare is null and void and that Roe v. Wade should be overruled.
Unfortunately, this is unlikely, as the Court has available to it a couple of procedural means of turning back both challenges. It can rule that the parties seeking to contest the abortion regulations, the operators of the clinics, are the wrong litigants to assert the rights of the affected women (in legal parlance they lack "standing").
It could also decide that even without the "tax," other parts of Obamacare may remain, because Americans have come to depend on them, and they ought to be regarded as "severable" from the individual mandate.
The Chief Justice, in an election year, is not inclined to allow the court to make highly controversial rulings, and it is likely that the restoration of the Constitution’s original understanding will have to await a second Trump term and perhaps one or two more appointments to the court.
Americans who believe that it is the job of justices to return the Constitution to its original understanding, and those who believe in dismantling the Federal Leviathan, thus still have reasons to condemn Schumer, and to seek Mr. Trump’s reelection.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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