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Strike 7


Dahlia Lithwick on John Roberts sending a stern rebuke to Chuck Schumer for…quoting the previous remarks of current Supreme Court Associate Justice Brett Kavanuagh nearly verbatim:

But Roberts—whose entire daily life has been reduced to a Shakespearian tragedy in which he must pretend to float above the sordid reality of trashed institutions and shattered judicial norms while at all times secretly rooting for the team that wears the MAGA jerseys—has drawn a truly terrible card in this whole constitutional poker game called the Trump presidency. It’s been a pickle, but for the most part, even through the living hell of the impeachment trial and the dramatic end of the last term, he’s managed to thread a sort of pox-on-both-your-houses needle when constitutional players behave in an unseemly manner. Indeed, if Wednesday morning’s arguments in June Medical serve any kind of predictive value, Roberts was again caught between the rock that is his careerlong desire to overturn Roe and the hard place that was the staggeringly garbage legal arguments from counsel representing Louisiana in its efforts to help him achieve it.

Still, it beggars belief that the same chief justice who stood by silently at Trump’s direct attacks at federal judge after federal judge, and hit snooze last week at presidential attacks on Ruth Bader Ginsburg and Sonia Sotomayor and on Amy Berman Jackson as she is poised to sentence Roger Stone, is going to fire up the creaky old Supreme Court teletype machine to rebuke Chuck Schumer for saying the same thing Brett Kavanaugh said a little more than a year ago.

Maybe the whole threat of whirlwinds is somehow less threatening when it’s coming from a federal judge and directed at Senate Democrats than it is in a speech coming from a Senate Democrat directed at federal judges. Or maybe a threatening speech from a judge is somehow less threatening after he wins lifetime tenure? Anyone else in America could be forgiven for not recognizing that Kavanaugh’s threats in 2018 were almost word for word repeated by Schumer on Wednesday. But for a chief justice who prides himself on minimalism, humility, and a robust grasp of both history and the long game, the choice to rebuke only one judicial critic in this context puts the lie to the whole project of soaring neutrality and the grim calling of pitches. Threats are threats, whirlwinds are whirlwinds, and judges remain in daily fear of public revolt. All of them, male and female, district court, and the guy who sits next to you. Singling out only the threats that happen on your front steps doesn’t make you neutral—it makes you parochial, and in the worst possible way.

It’s obviously no coincidence that he’s particularly touchy about what Democrats are going to say as he begins to gut Roe. Some whirlwinds are going to happen whether you want them or not.

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